Agreements, Contracts and Commitments. (a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”): (i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act); (ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business; (iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries; (iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty; (v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity; (vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries; (vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business; (viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions; (ix) each Company Real Estate Lease; (x) each Contract with any Governmental Body; (xi) each Company Out-bound License and Company In-bound License; (xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or (xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole. (b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 5 contracts
Samples: Merger Agreement (Bell Robert G.), Merger Agreement (Tanimoto Sarina), Merger Agreement (Silverback Therapeutics, Inc.)
Agreements, Contracts and Commitments. Except as set forth in the ------------------------------------- Acquiror Schedules, neither Acquiror nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Acquiror's Board of the date of this Agreement (Directors, other than those that are terminable by Acquiror or any Company Benefit Plans) (eachof its subsidiaries on no more than thirty days notice without liability or financial obligation, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject except to the public reporting requirements extent general principles of the Exchange Act)wrongful termination law may limit Acquiror's or any of its subsidiaries' ability to terminate employees at will;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or guaranty not entered into in the Ordinary Course ordinary course of Businessbusiness other than indemnification agreements between Acquiror or any of its subsidiaries and any of its officers or directors;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, Acquiror or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business or compete with any Person, (B) person or granting any “most-favored nations” pricing provisions or marketing or exclusive distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesrights;
(ive) each Contract relating to capital expenditures and requiring payments after the date of this Agreement any agreement, contract or commitment currently in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract force relating to the disposition or acquisition of material assets not in the ordinary course of business or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise;
(vif) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company joint marketing or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiariesagreement; or
(xiiig) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment described in Item 10 of more than $200,000 in Regulation S-K (whether or not a filing with the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that SEC requiring such document to be included as an exhibit is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretoyet due). Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Acquiror nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Acquiror's knowledge any other party to a Company Material ContractAcquiror Contract (as defined below), has breached, violated or defaulted under, or received notice that it breached, has breached violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Acquiror or any of its subsidiaries is a party or by which it is bound of the type described in clauses (a) through (g) above (any such agreement, any Company Material Contract contract or commitment, an "ACQUIROR CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Material Acquiror Contract, or would permit any other party to seek damages or pursue other legal remedies damages, which would be reasonably be expected likely to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAcquiror.
Appears in 4 contracts
Samples: Agreement and Plan of Reorganization (Rational Software Corp), Agreement and Plan of Reorganization (Rational Software Corp), Merger Agreement (Pure Atria Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit Plans) Plans (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting in any material respect the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than Parent or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, option to receive a license, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than Parent, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into in the Company or any Ordinary Course of its SubsidiariesBusiness;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xii) each Parent Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or;
(xiii) each Parent Contract, offer letter, employment agreement, or independent contractor agreement with any employee, independent contractor or other natural person service provider whose annual compensation equals or exceeds $125,000 that (A) is not immediately terminable by Parent without notice, severance, or other cost or liability, except as required under applicable Law, or (B) provides for retention payments, change-of-control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of the Merger;
(xiv) any other Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole;
(xv) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute;
(xvi) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License; and
(xvii) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, and no Person has indicated in writing to Parent that it desires to renegotiate, modify, not renew or cancel any Parent Material Contract.
Appears in 3 contracts
Samples: Merger Agreement (Spyre Therapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) Neither Company nor any of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, its Subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or is bound by:
(i) each Contract that would be a material any employment or consulting agreement, contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements or commitment with any executive officer or member of the Exchange Act)Board of Directors of Company, other than those that are terminable by Company or any of its Subsidiaries on no more than thirty (30) days' notice without Liability or financial obligation to Company;
(ii) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businessproducts or services in the ordinary course of business;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Company or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Bv) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the disposition or acquisition by Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments Subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Company has any material assets or any ownership interest in any Entity;corporation, partnership, joint venture or other business enterprise other than its Subsidiaries; or
(vi) each Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;credit.
(viib) each Contract requiring payment by or to the Neither Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or nor any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services nor to the knowledge of Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material ContractContract (as defined below), has breachedis in breach, violated violation or defaulted default under, or and neither Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Company or any of its Subsidiaries is a party or by which Company or any of its Subsidiaries is bound that are required to be disclosed in the Company Schedules pursuant to this Agreement (any such agreement, any contract or commitment, a "Company Material Contract Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek material damages or pursue other legal material remedies which would reasonably be expected to be material to the Company (for any or its business all of such breaches, violations or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiatingdefaults, or has a right pursuant to all of them in the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Quantum Corp /De/), Merger Agreement (Quantum Corp /De/), Merger Agreement (Maxtor Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.14 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesParent;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesParent, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Xxxxxx and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeParent.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, neither Parent nor, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operations. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 3 contracts
Samples: Merger Agreement (Bell Robert G.), Merger Agreement (Tanimoto Sarina), Merger Agreement (Silverback Therapeutics, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a3.10(a) of the Company Disclosure Schedule lists Schedules sets forth a complete and accurate list of the following contracts and agreements (written or oral) to which the Company Contracts in effect as or any of its Subsidiaries is a party or by which the date of this Agreement (other than Company or any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):such Subsidiary is bound:
(i) each Contract that would be a material contract as defined any agreement (or group of related agreements) for the lease of real property or personal property from or to third parties providing for lease payments (A) in Item 601(b)(10excess of $50,000 per annum or (B) in excess of Regulation S-K as promulgated under $150,000 in the Securities Act (assuming aggregate for the Company was subject to the public reporting requirements remainder of the Exchange Act)term;
(ii) each Contract relating to any agreement (or group of indemnification related agreements) for the purchase or guaranty not sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year and involves more than $150,000, in the aggregate, or (B) which involves more than the sum of $50,000 per annum;
(iii) any agreement establishing a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it has imposed (or may impose) a Lien (other than Permitted Liens) on any of its assets, tangible or intangible;
(v) any employment, severance, bonus, retention or consulting agreement;
(vi) any agreement involving any officer or director of the Company;
(vii) any material license, sublicense or other agreement under which the Company or any Subsidiary of it is authorized to use or distribute any Third Party Intellectual Property in connection with, incorporated in or as part of, any product or service sold by or expected to be sold by the Company or any Subsidiary of it;
(viii) any material agreement granting or restricting the right of the Company to use any Company Intellectual Property other than license agreements entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (Dix) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any Subsidiary of its Subsidiaries has continuing obligations it granted or was granted exclusive marketing, distribution or sales rights with respect to develop any industry, customer segments, geographical area or market otherwise;
(x) any productagreement, technology commitment, judgment, injunction or service, or any agreement pursuant order to which the Company or any Subsidiary of its Subsidiaries it is a party or is subject to that has continuing obligations or would reasonably be expected to develop any Intellectual Property Rights that will not be owned, in whole have the effect of prohibiting or in part, by impairing the Company or any conduct of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology the business of the Company or any Subsidiary of its Subsidiaries or it in any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiariesmaterial respect, in each caseany geographic area, except for Contracts entered into in the Ordinary Course any period of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;time; and
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend agreement under which the consequences of a default or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 termination would reasonably be expected to result in the aggregate, or obligations after the date of this Agreement losses in excess of $500,000 in 100,000 ((i) through (xi) collectively, the aggregate, or (B) that is material “Company Material Contracts”). The Company has provided to the business or operations Buyer a complete and accurate copy of each Company Material Contract. Each Company Material Contract is in full force and effect and is enforceable in accordance with its terms. Neither the Company and its Subsidiariesnor any Subsidiary of it nor, taken as to the Company’s knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a wholeviolation of or default under) any Company Material Contract.
(b) The Company has delivered or made available to Parent accurate SEC Reports and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b3.10(b) of the Company Disclosure ScheduleSchedule disclose each contract or agreement to which the Company or any Subsidiary of it is a party or bound with any Affiliate of the Company (other than any Subsidiary which is a direct or indirect wholly owned Subsidiary of the Company). Complete and accurate copies of all the agreements, there are no contracts and arrangements have heretofore been provided to the Buyer. Except as disclosed in the Company Material Contracts that are not in written form. As of SEC Reports filed prior to the date of this Agreement, none neither the Company nor any Subsidiary of the Company, it has entered into any transaction with any Affiliate of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business any Subsidiary of it or operations. As any transaction that would be subject to the Company and its Subsidiaries, as proxy statement disclosure pursuant to Item 404 of the date Regulation S-K. For purposes of this Agreement, each the term “Affiliates” when used with respect to any party shall mean any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(c) Following the Closing, the Surviving Corporation will be permitted to exercise all of the Company’s rights under the Company Material Contract is valid, binding, enforceable and in full force and effect, subject Contracts to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to same extent that the Company or any would have been able to had the Merger not occurred and without the payment of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractadditional consideration.
Appears in 3 contracts
Samples: Merger Agreement (Infospace Inc), Merger Agreement (Infospace Inc), Merger Agreement (Epresence Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(aSet forth in Schedule 2.13(a) is a list of all agreements, contracts, leases, licenses or commitments (a) under which the Company has or may acquire any rights, (b) under which the Company has or may become subject to any obligation or liability, or (c) by which the Company or any of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement assets owned or used by it is or may become bound (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):), including any of the following:
(i) each Contract any agreements or arrangements that would be a material contract as defined in Item 601(b)(10) of Regulation Scontain any severance pay or post-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);employment liabilities or obligations,
(ii) each Contract relating to any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(iv) any fidelity or surety bond or completion bond,
(v) any lease of personal property,
(vi) any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;guaranty,
(iiivii) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or to compete with any Person, ,
(Bviii) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract commitment relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;expenditures,
(vix) each Contract any agreement, contract or commitment relating to the disposition or acquisition of material assets or any ownership interest in any Entity;business enterprise outside the ordinary course of the Company’s business,
(vix) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Personcredit, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services guaranties referred to the Company in connection with the Contemplated Transactions;
clause (ixvi) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;hereof,
(xi) each Company Out-bound License and Company In-bound License;any purchase order or contract for the purchase of raw materials,
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; orconstruction contracts,
(xiii) any distribution, joint marketing or development agreement, or
(xiv) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholenot cancelable without penalty within thirty (30) days.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Contract. Each Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, effect and is not subject to any default thereunder of which the Enforceability ExceptionsCompany or ORA have knowledge by any party obligated to the Company pursuant thereto.
(c) No consents, waivers and approvals of parties to any Company Contract are necessary in order to avoid any breach, violation, default, acceleration or termination right or other loss of rights or event that would constitute a breach, violation, default, acceleration or termination right or other loss of rights with the lapse of time, giving of notice, or both, in connection with the execution and delivery of this Agreement and the consummation of transactions contemplated hereby.
(d) The Company has delivered to Monaco true, correct and complete copies of the Company Contracts, including all exhibits, amendments and supplements and all material correspondence related thereto. No Person is renegotiatingparty to any Company Contract has informed the Company of its intention to terminate or not renew such Company Contract. No issue has been raised by any party out of the ordinary course of business, if unresolved, would result in the termination or has a right nonrenewal of such Company Contract. Following the Closing, the Company will be permitted to exercise all of the rights that the Company had under the Company Contracts prior to the Closing without payment of any additional amounts or consideration other than ongoing fees or payments which the Company would otherwise be required to pay pursuant to the terms of any such Company Material Contract to change, any material amount paid or payable to had the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contracttransactions contemplated by this Agreement not occurred.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than the Company or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than the Company, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into the Company or any Ordinary Course of its SubsidiariesBusiness;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract, offer letter, employment agreement, or independent contractor agreement with any employee, independent contractor or other natural person service provider whose annual compensation equals or exceeds $125,000 that (A) is not immediately terminable at will by the Company without notice, severance or other cost or payment, except as required under applicable Law, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of its Subsidiaries; orthe Merger;
(xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xv) any other Company Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, any of its Subsidiaries, Company nor, to the Company’s Knowledge, as of the date of this Agreement any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 3 contracts
Samples: Merger Agreement (Spyre Therapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.), Merger Agreement (Aeglea BioTherapeutics, Inc.)
Agreements, Contracts and Commitments. (a) Except as disclosed in the Players SEC Reports or as disclosed in Section 2.14(a3.11(a) of the Company Players Disclosure Schedule lists the following Company Contracts in effect Schedule, as of the date of this Agreement (other than Agreement, neither Players nor any Company Benefit Plans) (each, of its Subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):
party to any oral or written (i) each Contract that agreement, contract, indenture or other instrument relating to Indebtedness (as defined below) in an amount exceeding $1,000,000, (ii) partnership, joint venture or limited liability or management agreement with any person, (iii) agreement, contract, or other instrument relating to any merger, consolidation, business combination, share exchange, business acquisition, or for the purchase, acquisition, sale or disposition of any material assets of Players or any of its Subsidiaries outside the ordinary course of business, (iv) other contract, agreement or commitment to be performed after the date hereof which would be a material contract (as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange ActSEC);
, (iiv) each Contract agreement, contract, or other instrument relating to any "strategic alliances" (i.e., cross-marketing, affinity relationship, etc.), (vi) contract, agreement or commitment which materially restricts (geographically or otherwise) the conduct of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Players or any of its Subsidiaries, (vii) any contract, agreement or other instrument having as a party a partnership, joint venture or limited liability company in each casewhich Players or any of its Subsidiaries is a partner, except for Contracts entered into joint venture party or member which would otherwise satisfy the criteria in the Ordinary Course clauses (i), (iii), (iv), (v) or (vi) if Players or any of Business;
its Subsidiaries were a party to such contract, agreement or other instrument or (viii) each Contract with any Personother material contract requiring annual or remaining payments in excess of $250,000 after the date hereof and which is not cancelable on less than 30 days' notice (collectively, including the "Players Material Contracts"). "Indebtedness" means any financial advisorliability in respect of (A) borrowed money, broker(B) capitalized lease obligations, finder, investment banker (C) the deferred purchase price of property or services (other Person, providing advisory services to than trade payables in the Company in connection with the Contemplated Transactions;
ordinary course of business) and (ixD) each Company Real Estate Lease;
(x) each Contract with guarantees of any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company foregoing incurred by any other person other than Players or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 3 contracts
Samples: Merger Agreement (Jackpot Enterprises Inc), Merger Agreement (Kornstein Don R), Merger Agreement (Players International Inc /Nv/)
Agreements, Contracts and Commitments. The following agreements, ------------------------------------- contracts or commitments with respect to which Oplink or one of its subsidiaries is a party or is bound are referred to herein as the "Oplink Contracts":
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Oplink's Board of the date of this Agreement (Directors, other than those that are terminable by Oplink or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Oplink;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesssoftware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Oplink or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Oplink or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of assets in excess of $200,000 250,000 not in the ordinary course of business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Oplink has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Oplink's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing, alliance, development or other agreement currently in force under which Oplink or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service, or any material agreement pursuant to which Oplink or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Oplink or any of its subsidiaries;
(g) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Oplink product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Oplink products or service except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Avanex;
(h) any agreement, contract or commitment currently in force to provide source code to any third party, including any escrow agent, for any product or technology that is material to Oplink and its subsidiaries taken as a whole;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 (i) in connection with or pursuant to which Oplink and its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $250,000 during the current fiscal year or obligations after during the date of this Agreement in excess of $500,000 in the aggregatenext fiscal year, or (Bii) that is a material to the business or operations contract (as defined in Item 601(b)(10) of Regulation S-K of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretoSEC rules). Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Oplink nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Oplink's Knowledge any other party to a Company Material Oplink Contract, has breachedis in material breach, violated violation or defaulted default under, or and neither Oplink nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of, or Laws applicable to, of any Company Material Oplink Contract in such a manner as would permit any other party to cancel or terminate any such Company Material Oplink Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Avanex Corp), Agreement and Plan of Reorganization (Avanex Corp), Agreement and Plan of Reorganization (Oplink Communications Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on Section 2.14(a) 4.23 of the Company Disclosure Schedule lists Letter, neither the following Company Contracts in effect as nor any of the date of this Agreement (other than any Company Benefit Plans) (each, its Subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or bound by:
(i) each Contract that would be a material contract as defined in Item 601(b)(10any lease or sublease (whether of real or personal property) providing for annual rentals of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)$250,000 or more;
(ii) each Contract relating to any agreement for the purchase or license of indemnification materials, supplies, goods, services, equipment or guaranty not entered into in other tangible or intangible assets providing for either (A) annual payments by the Ordinary Course Company or its Subsidiaries of Business$250,000 or more or (B) aggregate payments by the Company or its Subsidiaries of $250,000 or more;
(iii) each Contract containing any license, sales, distribution or other similar agreement (other than agreements with end user customers or agreements to provide services entered into in the ordinary course of business) providing for the sale or license by the Company or any of its Subsidiaries of software, materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to the Company or its Subsidiaries of $250,000 or more or (B) aggregate payments to the Company and the Subsidiaries of $250,000 or more;
(iv) any covenant limiting material partnership, joint venture, development, alliance, agency, dealer, sales representative, marketing, distribution, original equipment manufacturer, value added reseller, remarketer, joint marketing, channel partner or other similar agreement or arrangement;
(v) any agreement, contract or commitment relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $250,000 and which may be prepaid on not more than 30 days notice without the payment of any penalty;
(vii) except for end-user licenses granted to customers by the Company or its Subsidiaries in the ordinary course of business consistent with past practices, any material option (other than employee stock options), license or franchise;
(viii) any software development agreement or other agreement for development or authorship of products and services for the Company or any of its Subsidiaries other than agreements with employees and consultants entered into by the Company or its Subsidiaries in the ordinary course of business;
(ix) any agreement that limits the freedom of the Company, its Subsidiaries Company or the Surviving Corporation any Subsidiary to engage compete in any line of business or compete with any Person, (B) Person or in any “most-favored nations” pricing provisions geographic area or marketing or distribution rights related which would reasonably be expected to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity so limit the freedom of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesSubsidiary after the Effective Time, including without limitation any agreements containing "most favored nations" or other similar clauses;
(ivx) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other written agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any credit, other than those mortgages, indentures, loans or debt obligations with officers credit agreements, security agreements or directors of other agreements or instruments that are not, individually or in the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or aggregate, material to the Company or any Subsidiary of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: Company;
(Axi) any distribution material agreement (identifying with any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities Affiliate of the Company (or any of its Subsidiaries; (C) Subsidiary), with any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development director or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service Officer of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract or with any Person, including "associate" or any financial advisor, broker, finder, investment banker member of the "immediate family" (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the 0000 Xxx) of any such director or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;Officer; or
(xii) each Contract containing any royalty, dividend agreement with change in control or similar arrangement based on the revenues arrangements, that will result in any obligation (absolute or profits contingent) of the Company or any Subsidiary to make any payment as a result of its Subsidiariesthe consummation of the Merger; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract commitment, arrangement or commitment of more than $200,000 plan not made in the aggregate, or obligations after the date ordinary course of this Agreement in excess of $500,000 in the aggregate, or (B) business that is material to the business or operations of the Company and its Subsidiaries, taken as a wholewhole other than agreements with end user customers entered into in the ordinary course of business, involving annual payments to the Company and its Subsidiaries in excess of $250,000.
(b) The Each agreement, contract, instrument, plan, lease, arrangement or commitment disclosed or required to be disclosed pursuant to this Section 4.23 is referred to as a "Scheduled Agreement" and is a valid and binding agreement of the Company has delivered or made available its Subsidiaries, as the case may be, and is in full force and effect with respect to Parent accurate and complete copies the Company or any Subsidiary of all Company Material Contracts, including all amendments theretothe Company. Except as set forth in on Section 2.14(b4.23(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this AgreementLetter, none of the Company, any Subsidiary of its Subsidiaries, northe Company or, to the Knowledge of the Company’s Knowledge, any other party to a Company Material Contractany Scheduled Agreement is in default, has breachedviolation or breach in any material respect under the terms of any such Scheduled Agreement, violated or defaulted underand, or received notice that it breached, violated or defaulted under, any to the Knowledge of the terms Company, no event or conditions ofcircumstance has occurred that, with notice or Laws applicable tolapse of time or both, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be constitute a material event of default thereunder. With respect to real property leases set forth on Section 4.23 of the Company Disclosure Letter:
(i) there are no disputes, oral agreements or forbearance programs in effect as to the Company lease or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to sublease;
(ii) the Company or any of its Subsidiaries under has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any Company Material Contract interest in the leasehold or any subleasehold;
(iii) to the Knowledge of the Company, all facilities leased or subleased thereunder have received all approvals of governmental authorities (including licenses and permits) required in connection with the operation thereof and been operated and maintained in accordance with applicable laws, rules and regulations; and
(iv) all facilities leased or subleased thereunder are supplied with utilities and all other material term services necessary for the operation of the Company's or provision each of any Company Material Contractits Subsidiaries' business as currently conducted and as currently proposed to be conducted and for the operation of said facilities. True and complete copies of each Scheduled Agreement have been made available to Parent.
Appears in 2 contracts
Samples: Merger Agreement (Computer Network Technology Corp), Merger Agreement (McData Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a4.22(a) of the Company Target Disclosure Schedule lists each Transaction Agreement and each Contract to which Target and each of its Subsidiaries is a party or bound and that fall within any of the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) categories (each, a “Company Material Target Contract” and collectively, the “Company Material Contracts”):
): (i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty Contracts not entered into in the Ordinary Course ordinary course of Business;
business, (ii) joint venture, partnership and similar agreements, (iii) each Contract Contracts which are service contracts or equipment leases involving payments by Target of more than $10,000 per year, (iv) Contracts containing (A) any covenant limiting covenants purporting to limit the freedom of Target (or, after the CompanyClosing, Purchaser or its Subsidiaries or the Surviving Corporation Subsidiaries) to engage compete in any line of business in any geographic area or compete to hire any individual or group of individuals, or requiring Target (or, after the Closing, Purchaser or its Subsidiaries) to deal exclusively with, grant exclusive rights to, or refrain from dealing with products that are competitive with any Personother party’s products, (Bv) Contracts which contain minimum purchase conditions or requirements or other terms that restrict or limit the purchasing relationships of Target or its Affiliates, or any “most-favored nations” pricing provisions customer, licensee or marketing or distribution rights related lessee thereof, (vi) Contracts relating to any products or territoryoutstanding commitment for capital expenditures of more than $10,000 per year, (Cvii) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable Contracts relating to the Company lease or sublease of or sale or purchase of real or personal property involving any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement annual expense or price in excess of $200,000 pursuant to its express terms 10,000 and not cancelable by Target (without premium or penalty;
) within 90 days, (vviii) each Contract relating to the disposition or acquisition of material assets or Contracts with any ownership interest in any Entity;
labor organization, (viix) each Contract relating to any indentures, mortgages, indenturespromissory notes, loans, notes or credit loan agreements, security agreements guarantees, letters of credit or other agreements or instruments relating of Target or commitments for the borrowing or the lending of amounts in excess of $10,000 by Target or providing for the creation of any Lien upon any of the assets of Target, (x) Contracts providing for “earn-outs” or other contingent payments, (xi) Contracts with or for the benefit of any holder of capital stock or options to purchase capital stock of Target, Affiliate of Target or, to the borrowing knowledge of money Target, any such holder or extension of credit or creating any material Encumbrances immediate family member thereof, (xii) Contracts with respect to employment or consulting services or providing for severance benefits, (xiii) Contracts involving any assets current or former officer, director or stockholder of the Company Target or any an Affiliate of its Subsidiaries or any loans or debt obligations with officers or directors Target; and (xiv) all other Contracts not called for above that are material to the business of Target as it is currently being conducted.
(b) Each of the Company or Material Target Contracts is valid and in full force and effect. Neither Target nor any of its Subsidiaries;
(vii) each Contract requiring payment by , nor to Target’s knowledge any other party to a Material Target Contract, has violated any material provision of, or committed or failed to perform any act which, with or without notice, lapse of time, or both, would constitute a material default under the Company or provisions of any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealersuch Material Target Contract, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or and neither Target nor any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in received written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the Material Target Contracts. Neither Target nor any Subsidiary of Target is a party to, or Laws applicable otherwise a guarantor of or liable with respect to, any Company Material Contract in such manner as would permit any interest rate, currency or other party to cancel swap or terminate derivative transaction, other than any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to transactions in the Company or its business or operationsordinary course of business. As to the Company Target has made correct and its Subsidiaries, as complete copies of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject Target Contracts available to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractPurchaser.
Appears in 2 contracts
Samples: Merger Agreement (Resource Capital Fund v L.P.), Merger Agreement (Uranium Resources Inc /De/)
Agreements, Contracts and Commitments. Neither Cybex nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Cybex's Board of the date of this Agreement (Directors, other than those that are terminable by Cybex or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Cybex;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesscomputer or communications hardware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Cybex or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business, conduct business in any geographical area or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Cybex or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Cybex has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Cybex's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Cybex or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Cybex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Cybex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Cybex and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Cybex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Cybex products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Apex;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess that has a value of $500,000 in the aggregate, 1,000,000 or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretomore individually. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Cybex nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Cybex's knowledge any other party to a Company Material ContractCybex Contract (as defined below), has breachedis (or with nothing more than notice and/or the passage of time will be) in breach, violated violation or defaulted default under, or and neither Cybex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Cybex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Cybex Schedules (any such agreement, any Company Material Contract contract or commitment, a "CYBEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Material Cybex Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operationsaggregate). As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Each Cybex Contract is valid, binding, enforceable and in full force and effect, subject and is a legal, valid and binding obligation of Cybex or a subsidiary of Cybex and, to the Enforceability Exceptions. No Person knowledge of Cybex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is renegotiatingconsidered in a proceeding in equity or at law) and (b) as would not, individually or has in the aggregate, be reasonably expected to result in a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAdverse Effect on Cybex.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Apex Inc), Agreement and Plan of Reorganization (Cybex Computer Products Corp)
Agreements, Contracts and Commitments. Except as set forth in Section 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) Section 2.14(a) of the No Acquired Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (eachis a party to, a “Company Material Contract” and collectively, the “Company Material Contracts”):or is bound by:
(i) each Contract that would be a material contract Other than as defined listed in Item 601(b)(10Section 2.16(a)(i) of Regulation S-K as promulgated under the Securities Act Disclosure Schedule, any (assuming the Company was subject A) employment, contractor or consulting Contract, (B) Contract with Service Provider, or (C) any Contract to the public reporting requirements of the Exchange Act)grant any severance or termination pay (in cash or otherwise) to any employee;
(ii) other than the Company Plans or any of the collective bargaining agreements listed in Section 2.16(a)(ii) of the Disclosure Schedule (each an “Applicable CBA”), any Contract relating to or plan, including any agreement stock option plan, stock appreciation rights plan or stock purchase plan, any of indemnification the benefits of which will be increased, or guaranty not entered into the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or in connection with additional or subsequent events) or the Ordinary Course value of Businessany of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries fidelity or the Surviving Corporation to engage in any line of business surety bond or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariescompletion bond;
(iv) each any collective bargaining, union or works council Contract other than the Applicable CBAs;
(v) any lease of personal property having a value in excess of €25,000 individually or €50,000 in the aggregate;
(vi) any Contract that imposes surety, guaranty or indemnification obligations on the Acquired Companies (other than indemnities contained in non-exclusive licenses of Company products and services to end-users that have been entered into in the ordinary course of business consistent with past practice pursuant to the Company’s standard forms included in Section 2.15(j) of the Disclosure Schedule);
(vii) any Contract relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty€25,000 individually or €50,000 in the aggregate;
(vviii) each any Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of the business of the Acquired Companies;
(viix) each Contract relating to any mortgagesmortgage, indenturesindenture, loansguarantee, notes loan or credit agreementsagreement, security agreements agreement or other agreements or instruments Contract relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each any purchase order Contract with any Governmental Bodyfor the purchase of materials involving in excess of €15,000;
(xi) each Company Out-bound License and Company In-bound Licenseany construction Contract;
(xii) each Contract containing any royaltyjoint marketing, dividend joint venture, partnership, strategic alliance, affiliate or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; ordevelopment Contract;
(xiii) any Contract to alter interest of any Acquired Company in any Person in which the Company directly or indirectly holds any interest;
(xiv) any Contract pursuant to which the any Acquired Company has undertaken to, or pursuant to which the receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence as of the date hereof, or contingent upon the release or delivery of any new product or new version of an existing product;
(xv) any Contract between the Acquired Companies and a customer or partner of the Acquired Companies pursuant to which paid fees must be refunded, payment of fees is contingent upon or an agreement may be terminated in the event the software products, services or deliverables offered by the Acquired Companies do not pass acceptance testing by such customer or partner;
(xvi) any Contract between any Acquired Company and a customer or partner of the Acquired Companies which includes a most favored customer, price or service benchmarking or similar clause;
(xvii) any Contract between any Acquired Company and a customer or partner of the Acquired Companies for which application revenue, under Relevant Accounting Standards, may not be recognized on a prorata basis over the term of the agreement or for which any application revenue must be deferred or put on hold pending a future event;
(xviii) any dealer, distribution, sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other Contract for use or distribution of the products, technology or services of the Acquired Companies; or
(xix) any other Contract, including any service, operating or management Contract with respect to any of the Leased Real Property, that involves €25,000 individually or €50,000 in the aggregate or more and is not terminable at will (with no cancelable without penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholewithin 30 days.
(b) The Each Contract to which any Acquired Company has delivered is a party or made available to Parent accurate any of its properties or assets (whether tangible or intangible) is subject is a valid and complete copies binding agreement of all such Acquired Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) enforceable against each of the Company Disclosure Scheduleparties thereto in accordance with its terms, there are no Company Material Contracts that are not and is in written form. As of full force and effect with respect to Acquired Companies and, to the date of this Agreement, none Knowledge of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contractthereto. The Acquired Companies are in compliance with, has and have not breached, violated or defaulted under, or received notice or has any Knowledge that a customer may assert that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate of any such Contract, nor to the Knowledge of the Company is any Person obligated to the Acquired Companies pursuant to any such Contract subject to any breach, violation or default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Acquired Companies or any such other Person. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, or would permit any other party the “Material Contracts”) have been made available to seek damages or pursue other legal remedies which would reasonably be expected Purchaser.
(c) The Acquired Companies have fulfilled all material obligations required pursuant to be material each Contract to have been performed by the Acquired Companies prior to the Company or its business or operations. As to the Company date hereof and its Subsidiaries, as of Closing.
(d) Except as disclosed in Section 2.16(d) of the date Disclosure Schedule, all outstanding Indebtedness of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAcquired Companies may be prepaid without penalty.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Taleo Corp)
Agreements, Contracts and Commitments. Part 2.9 of the Potomac Disclosure Schedule identifies, except for Potomac Contracts set forth in Part 2.13 of the Potomac Disclosure Schedule:
(a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each Potomac Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)employee benefit plans or arrangements;
(iib) each Potomac Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, not terminable by Potomac or its Subsidiaries on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit Potomac’s, Potomac’s Subsidiaries’ or such successor’s ability to terminate employees at will;
(c) each Potomac Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Potomac Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Potomac and any of its respective officers or directors;
(iiie) each Potomac Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the CompanyPotomac, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivf) each Potomac Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 100,000 and not cancelable without penalty;
(vg) each Potomac Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vih) each Potomac Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company Potomac or any of its Subsidiaries Potomac Subsidiary or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesPotomac;
(viii) each Potomac Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Potomac (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Potomac or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Potomac or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Potomac or any of its Subsidiariessuch Potomac Subsidiary; or (Div) any Contract currently in force to license any third party to manufacture or produce any Potomac product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any Potomac products or service of the Company except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business;
(viiij) each Potomac Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Potomac in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiik) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company Potomac or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of $100,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (Bii) that is material to the business or operations of the Company Potomac and its Subsidiaries, taken as a whole.
(b) The Company . Potomac has delivered or made available to Parent Tigris accurate and complete (except for applicable redactions thereto) copies of all Company Potomac Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Potomac Material Contracts that are not in written form. As Except as set forth on Part 2.9 of the Potomac Disclosure Schedule, neither Potomac nor any of its Subsidiaries has, nor to Potomac’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Potomac Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Potomac or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, any Company contract or commitment, a “Potomac Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Potomac Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Potomac Material Adverse Effect. As to the Company Potomac and its Subsidiaries, as of the date of this Agreement, each Company Potomac Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the Enforceability Exceptionsrelief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Contemplated Transactions shall not result in any material payment or payments becoming due from Potomac, any Potomac Subsidiary, the Surviving Corporation or Tigris to any Person under any Potomac Contract or give any Person the right to terminate or alter the provisions of any Potomac Contract. No Person is renegotiating, or has a right pursuant to the terms of any Company Potomac Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Potomac under any Company Potomac Material Contract or any other material term or provision of any Company Potomac Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (InterWest Partners IX, LP), Merger Agreement (Transcept Pharmaceuticals Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or provisions, (C) marketing or distribution rights related to any products or territory, (CD) any exclusivity provision, (DE) any agreement to purchase minimum quantity of goods or services, (F) granting to any Person a right of first refusal, a right of first negotiation or a right of first offer, in each case, to purchase, acquire, sell, exclusively license or dispose of any material assets or properties of the Company or granting to any Person an option to purchase, acquire, sell, exclusively license or dispose of any assets or properties that are material to the Company, or (EG) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesCompany;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without material penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any material assets of the Company or any (other than licenses to Intellectual Property Rights under Contracts set forth in Section 2.13(a)(xi) of its Subsidiaries the Company Disclosure Schedule) or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating toContract: (A) any that is a dealer or distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, that is a joint marketing, alliance, joint venture, cooperation, collaboration, collaboration or development or other agreement currently in force agreement; (D) under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that are not or will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (DE) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License (other than clinical trial agreements, non-disclosure agreements and non-exclusive outbound licenses granted to service providers limited to such service providers performance of services for the Company, non-disclosure agreements, in each case entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial rights to any products or services of the Company) and Company In-bound LicenseLicense (other than clinical trial agreements, services agreements, non-disclosure agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses and generally available patent license agreements, in each case entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial rights to any products or services of the Company);
(xii) each Contract under which any third party develops any material Intellectual Property Rights for the Company, other than individual consulting agreements that are substantially on the Company’s form of consulting agreement made available to Parent;
(xiii) each Contract containing any royalty, “earn-out”, dividend or similar arrangement contingent payment arrangement, including (x) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (y) payment of royalties or other amounts calculated based on the revenues revenues, income or profits of the Company or any of its SubsidiariesCompany; or
(xiiixiv) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by or obligations for the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeCompany.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, Company nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which which, in each case, would reasonably be expected to be material and adverse to the Company or its business or operations. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, which would reasonably be expected to be material and adverse to the Company or its business or operations.
Appears in 2 contracts
Samples: Merger Agreement (CalciMedica, Inc. /DE/), Agreement and Plan of Merger (Graybug Vision, Inc.)
Agreements, Contracts and Commitments. Neither Company nor any of its Subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Docent’s Board of the date of this Agreement (Directors, other than those that are terminable by Docent or any Company Benefit Plansof its Subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days’ notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Docent;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in the Ordinary Course ordinary course of Businessbusiness, that would not reasonably be expected to have a Material Adverse Effect on Docent, or any guaranty of the obligations of a Subsidiary of Docent;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Docent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Docent or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments Subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Docent has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Docent’s Subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Docent or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Docent or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Docent or any of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Docent and its Subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Docent product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Docent products, service or technology except agreements with distributors or sales representative in the normal course of business and substantially in the form previously provided to Click2learn;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit;
(j) any settlement agreement entered into within three (3) years prior to the date of this Agreement; or
(k) any other agreement, contract or creating any material Encumbrances commitment that, either individually or taken together with respect all other contracts with the same party, (i) has in the past 12 months resulted in payments being made by Docent or revenue to any assets Docent in excess of $1,000,000 or (ii) will, if fulfilled in accordance with its terms, result in payments being made by Docent or revenue to Docent in excess of $1,000,000 in the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or next 12 months. Neither Docent nor any of its Subsidiaries;
, nor to Docent’s knowledge any other party to a Docent Contract (vii) each Contract requiring payment by as defined below), is in breach, violation or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealerdefault under, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or and neither Docent nor any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in received written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Docent or any of its Subsidiaries is a party or by which it is bound that are required to be disclosed in the Docent Schedules (any such agreement, any Company Material Contract contract or commitment, a “Docent Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Material Docent Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Docent Inc), Agreement and Plan of Reorganization (Click2learn Inc/De/)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):is:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each Contract containing (A) any covenant limiting the freedom of the Company, Parent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivd) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(ve) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any EntityEntity (excluding agreements for the sale or purchase of goods or services in the Ordinary Course of Business);
(vif) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances (other than Permitted Encumbrances) with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(viig) each Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries150,000, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viiih) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixi) each Company Parent Real Estate Lease;
(xj) each Contract with any Governmental Body;
(xik) each Company Parent Out-bound License and Company Parent In-bound License;
(xiil) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or
(xiiim) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 150,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 150,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company . Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to the Knowledge of Parent, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, of or Laws applicable to, to any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, assuming due execution and delivery by the counterparties thereto, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, renegotiating any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Kubient, Inc.), Merger Agreement (Kubient, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 2.9 of the Company CombiMatrix Disclosure Schedule lists identifies the following Company Contracts in effect CombiMatrix Contracts, effective as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company CombiMatrix Material Contract” and collectively, the “Company CombiMatrix Material Contracts”):
(ia) each CombiMatrix Contract that would be a material contract as defined in Item 601(b)(10) of Regulation Srelating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)sharing or retirement plans, or any other employee benefit plans or arrangements;
(iib) each CombiMatrix Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, not terminable by CombiMatrix or its Subsidiaries on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit CombiMatrix’s, CombiMatrix’s Subsidiaries’ or such successor’s ability to terminate employees at will;
(c) each CombiMatrix Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each CombiMatrix Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between CombiMatrix and any of its respective officers or directors;
(iiie) each CombiMatrix Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the CompanyCombiMatrix, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivf) each CombiMatrix Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 25,000 and not cancelable without penalty;
(vg) each CombiMatrix Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vih) each CombiMatrix Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $25,000 or creating any material Encumbrances with respect to any assets of the Company CombiMatrix or any of its Subsidiaries CombiMatrix Subsidiary or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCombiMatrix;
(viii) each CombiMatrix Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services services, products or products technology with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; CombiMatrix (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company CombiMatrix or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company CombiMatrix or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company CombiMatrix or any of its Subsidiariessuch CombiMatrix Subsidiary; or (Div) any Contract currently in force to license any third party to manufacture or produce any CombiMatrix product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any products CombiMatrix products, technology or service of the Company services except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business;
(viiij) each CombiMatrix Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company CombiMatrix in connection with the Contemplated Transactions;
(ixk) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesCombiMatrix IP Right Agreement; or
(xiiil) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company CombiMatrix or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of $25,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 25,000 in the aggregate, or (Bii) that is material to the business or operations of the Company CombiMatrix and its Subsidiaries, taken as a whole.
(b) The Company . CombiMatrix has delivered or made available to Parent Invitae accurate and complete (except for applicable redactions thereto) copies of all Company CombiMatrix Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company CombiMatrix Material Contracts that are not in written form. As Neither CombiMatrix nor any of its Subsidiaries has, nor to CombiMatrix’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company CombiMatrix Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company CombiMatrix Material Contract in such manner as would permit any other party to cancel or terminate any such Company CombiMatrix Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsdamages. As to the Company CombiMatrix and its Subsidiaries, as of the date of this Agreement, each Company CombiMatrix Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the Enforceability Exceptionsrelief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Contemplated Transactions shall not result in any material payment or payments becoming due from CombiMatrix, any CombiMatrix Subsidiary, the Surviving Corporation or Invitae to any Person under any CombiMatrix Contract or give any Person the right to terminate or alter the provisions of any CombiMatrix Contract. No Person is renegotiating, or has a right pursuant to the terms of any Company CombiMatrix Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries CombiMatrix under any Company CombiMatrix Material Contract or any other material term or provision of any Company CombiMatrix Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Invitae Corp), Merger Agreement (CombiMatrix Corp)
Agreements, Contracts and Commitments. Except as otherwise set ------------------------------------- forth in the Talarian Disclosure Schedules, neither Talarian nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment agreement, contract or commitment with any employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Talarian's Board of the date of this Agreement (Directors, other than those that are terminable by Talarian or any Company Benefit Plans) (eachof its subsidiaries on no more than thirty days notice without liability or financial obligation, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject except to the public reporting requirements extent general principles of the Exchange Act)wrongful termination law may limit Talarian's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification outside the ordinary course of Talarian's business or guaranty not entered into in the Ordinary Course of Businessany guaranty;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Talarian or any of its Subsidiaries subsidiaries or the Surviving Corporation a Joint Venture to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Talarian or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Talarian has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Talarian's subsidiaries or a Joint Venture;
(f) other than the End-User Licenses set forth in Section 2.9(a)(ii) of the Talarian Disclosure Schedules and End User Licenses not listed in the Talarian Disclosure Schedules under which Talarian has not recognized revenue subsequent to January 1, 1997 and which are not material on an individual basis to Talarian, any licensing, distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement currently in effect to which Talarian or one of its subsidiaries or a Joint Venture is a party which may not be canceled by Talarian or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition 50,000 upon notice of 45 days or acquisition of material assets less or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment which provides for payments by or to the Company Talarian or any of its Subsidiaries after the date of this Agreement subsidiaries or a Joint Venture in an amount in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities 50,000 over the term of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessagreement;
(viiig) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to than the Company End-User Licenses set forth in connection with the Contemplated Transactions;
(ixSection 2.9(a)(ii) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or Talarian Disclosure Schedules and End User Licenses not listed in the Talarian Disclosure Schedules under which Talarian has not recognized revenue subsequent to January 1, 1997 and which are not material on an individual basis to Talarian, any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 currently in the aggregateforce, or obligations after that may be triggered upon the date completion of the transactions contemplated by this Agreement Agreement, to provide source code to any third party for any product or technology; or
(h) other than the End-User Licenses set forth in excess Section 2.9(a)(ii) of $500,000 the Talarian Disclosure Schedules, any other agreement, contract or commitment currently in the aggregate, or (B) effect that is material to the Talarian's business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretopresently conducted. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Talarian nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Talarian's knowledge any Joint Venture or any other party to a Company Material ContractTalarian Contract (as defined below), has breachedis in breach, violated violation or defaulted default under, and neither Talarian nor any of its subsidiaries nor, to the knowledge of Talarian, any Joint Venture has received written notice (or received notice to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Talarian or any of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be disclosed in the Talarian Disclosure Schedules pursuant to clauses (a) through (h) above or pursuant to Section 2.9 hereof (any such agreement, any Company Material Contract contract or commitment, a "Talarian Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, Talarian Contract or would permit any other party to seek damages or pursue other legal remedies the effect of which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company have a Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAdverse Effect on Talarian.
Appears in 2 contracts
Samples: Merger Agreement (Talarian Corp), Merger Agreement (Tibco Software Inc)
Agreements, Contracts and Commitments. (a) Except as disclosed in the Buyer SEC Reports or as disclosed in Section 2.14(a4.11(a) of the Company Buyer Disclosure Schedule lists the following Company Contracts in effect Schedule, as of the date of this Agreement (other than Agreement, neither Buyer nor any Company Benefit Plans) (each, of its Subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):
party to any oral or written (i) each Contract that agreement, contract, indenture or other instrument relating to Indebtedness in an amount exceeding $1,000,000, (ii) partnership, joint venture or limited liability or management agreement with any person, (iii) agreement, contract, or other instrument relating to any merger, consolidation, business combination, share exchange, business acquisition, or for the purchase, acquisition, sale or disposition of any material assets of Buyer or any of its Subsidiaries outside the ordinary course of business, (iv) other contract, agreement or commitment to be performed after the date hereof which would be a material contract (as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange ActSEC);
, (iiv) each Contract agreement, contract, or other instrument relating to any "strategic alliances" (i.e., cross-marketing, affinity relationship, etc.), (vi) contract, agreement or commitment which materially restricts (geographically or otherwise) the conduct of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Buyer or any of its Subsidiaries, in each case(vii) any contract, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker agreement or other Personinstrument having as a party a partnership, providing advisory services to the Company joint venture or limited liability company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company which Buyer or any of its Subsidiaries; or
Subsidiaries is a partner, joint venture party or member which would otherwise satisfy the criteria in clauses (xiiii), (iii), (iv), (v) or (vi) if Buyer or any of its Subsidiaries were a party to such contract, agreement or other instrument or (viii) any other Contract that material contract requiring annual or remaining payments in excess of $250,000 after the date hereof and which is not terminable at will cancelable on less than 30 days' notice (with no penalty or paymentcollectively, the "Buyer Material Contracts").
(b) by Except as disclosed in the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after Buyer SEC Reports filed prior to the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth disclosed in Section 2.14(b4.11(b) of the Company Buyer Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, (i) each Company of the Buyer Material Contract Contracts is validvalid and binding upon Buyer or any of its Subsidiaries (and, bindingto Buyer's best knowledge, enforceable on all other parties thereto) in accordance with its terms and is in full force and effect, subject to the Enforceability Exceptions. No Person (ii) there is renegotiating, no material breach or has a right pursuant to the terms violation of any Company Material Contract to change, any material amount paid or payable to the Company default by Buyer or any of its Subsidiaries under any Company of the Buyer Material Contract Contracts, whether or not such breach, violation or default has been waived, and (iii) no event has occurred with respect to Buyer or any of its Subsidiaries which, with the notice or lapse of time or both, would constitute a material breach, violation or default, or give rise to a right of termination, modification, cancellation, foreclosure, imposition of a lien, prepayment or acceleration under any of the Buyer Material Contracts, which breach, violation or default referred to in clauses (ii) or (iii), alone or in the aggregate with other material term such breaches, violations or provision of any Company defaults referred to in clauses (ii) or (iii), would be reasonably likely to have a Buyer Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Kornstein Don R), Merger Agreement (Jackpot Enterprises Inc)
Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Apex's Board of the date of this Agreement (Directors, other than those that are terminable by Apex or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Apex;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesscomputer or communications hardware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Apex or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Apex or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Apex has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Apex and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Cybex;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess that has a value of $500,000 in the aggregate, 1,000,000 or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretomore individually. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Apex nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Apex's knowledge any other party to a Company Material Contractan Apex Contract (as defined below), has breachedis (or with nothing more than notice and/or the passage of time will be) in breach, violated violation or defaulted default under, or and neither Apex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, any Company Material Contract contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Material Apex Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operationsaggregate). As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Each Apex Contract is valid, binding, enforceable and in full force and effect, subject and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the Enforceability Exceptions. No Person knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is renegotiatingconsidered in a proceeding in equity or at law) and (b) as would not, individually or has in the aggregate, be reasonably expected to result in a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAdverse Effect on Apex.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Apex Inc), Agreement and Plan of Reorganization (Cybex Computer Products Corp)
Agreements, Contracts and Commitments. The following agreements, ------------------------------------- contracts or commitments with respect to which Avanex or one of its subsidiaries is a party or is bound are referred to herein as the "Avanex Contracts":
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Avanex's Board of the date of this Agreement (Directors, other than those that are terminable by Avanex or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Avanex;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesssoftware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Avanex or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Avanex or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of assets in excess of $200,000 250,000 not in the ordinary course of business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Avanex has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Avanex's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing, alliance, development or other agreement currently in force under which Avanex or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service, or any material agreement pursuant to which Avanex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Avanex or any of its subsidiaries; .
(g) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Avanex product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Avanex products or service, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Oplink;
(h) any agreement, contract or commitment currently in force to provide source code to any third party, including any escrow agent, for any product or technology that is material to Avanex and its subsidiaries taken as a whole;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 (i) in connection with or pursuant to which Avanex and its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $250,000 during the current fiscal year or obligations after during the date of this Agreement in excess of $500,000 in the aggregatenext fiscal year, or (Bii) that is a material to the business or operations contract (as defined in Item 601(b)(10) of Regulation S-K of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretoSEC rules). Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Avanex nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Avanex's Knowledge any other party to a Company Material ContractAvanex Contract is in material breach, has breached, violated violation or defaulted default under, or and neither Avanex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of, or Laws applicable to, of any Company Material Avanex Contract in such a manner as would permit any other party to cancel or terminate any such Company Material Avanex Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Avanex Corp), Agreement and Plan of Reorganization (Avanex Corp)
Agreements, Contracts and Commitments. (a) Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended July 31, 2005 (“SEC Contracts”), or as disclosed in Section 2.14(a) 4.12 of the Company’s Disclosure Letter, neither the Company Disclosure Schedule lists nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following Company Contracts in effect as of the date of this Agreement nature (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any PersonContracts, (Bother than Licensed Intellectual Property) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to that involve the performance by the Company or any of its Subsidiaries;
Subsidiaries of services of an amount or value (ivas measured by the revenue derived therefrom during the fiscal year ended July 31, 2005) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to 4 million annually, unless terminable by the Company or its express terms and not cancelable Subsidiaries without material penalty;
(vii) each Contract relating to Contracts (A) for the disposition or acquisition sale of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries involving aggregate consideration of $1 million or more (other than this Agreement and licenses of Products in the ordinary course of business), or (B) for the grant to any Person of any preferential rights to purchase any material amount of assets or any loans or debt obligations with officers or directors material asset of the Company or any of its Subsidiaries;
(viiiii) each Contract requiring payment Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, any business or Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice);
(iv) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities Indebtedness of the Company or any its Subsidiaries (excluding trade payables arising in the ordinary course of its Subsidiaries; (C) any dealerbusiness consistent with past practice, distributorintercompany indebtedness whether or not shown on the Company’s balance sheet as of January 31, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently 2006 included in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any productSEC Documents and immaterial leases for telephones, technology or servicecopy machines, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessfacsimile machines and other office equipment);
(viiiv) each Contract with Contracts relating to material loans or advances (other than advances to employees in the ordinary course of business), or investments in, any Person, including any financial advisor, broker, finder, investment banker or Person (other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by than the Company or its Subsidiaries), as applicableor Contracts relating to the making of any such loans, and advances or investments or any Contracts involving a sharing of profits (Aother than bonus arrangements with employees entered into in the ordinary course of business consistent with past practice);
(vi) Contracts which create in writing a joint venture, partnership or similar arrangement (including any franchising agreement) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole;
(vii) Contracts relating to any material Company Permits;
(viii) Contracts containing covenants purporting to materially restrict the Company or any of its Subsidiaries from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business;
(ix) Contracts providing for exclusive arrangements between the Company or any of the Subsidiaries and any other Person to license, sublicense, sell, use or distribute any of the Products;
(x) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xi) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act.
(b) The Company has delivered Except as would not reasonably be expected to result, individually or made available to Parent accurate and complete copies of all in the aggregate, in a Company Material ContractsAdverse Effect, including all amendments thereto. Except as set forth (i) neither the Company nor any or its Subsidiaries is in Section 2.14(bbreach under any Company Material Contract, and (ii) each Company Material Contract is in full force and effect, is a valid and binding obligation of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As or the Subsidiary of the date of this Agreement, none of the Company, any of its Subsidiaries, norCompany party thereto and, to the Company’s Knowledge, any each other party thereto, except to a Company Material Contractthe extent that (A) enforceability may be subject to or otherwise limited by applicable bankruptcy, has breached, violated or defaulted underinsolvency, or received notice that it breachedother similar laws, violated now or defaulted underhereinafter in effect, any affecting creditors’ rights generally or the remedy of specific performance, or (B) specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the terms or conditions of, or Laws applicable to, court before which any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably proceeding therefore may be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractbrought.
Appears in 2 contracts
Samples: Merger Agreement (Magellan Holdings, Inc.), Merger Agreement (Ssa Global Technologies, Inc)
Agreements, Contracts and Commitments. (ai) Section 2.14(a) of the The Company Disclosure Schedule lists sets forth a true, complete and correct list of all the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements arrangements or other agreements understandings, whether written or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealeroral, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries is a party, (A) agreements relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed, secured by any asset or otherwise) for amounts in excess of $1,000,000, (B) agreements for the lease of real or personal property to or from any person with lease payments in excess of $100,000 per year, (C) partnership agreements, joint venture agreements or other similar agreements relating to similar business arrangements, (D) confidentiality or noncompetition agreements other than with respect to confidentiality agreements entered into in the ordinary course of business for the benefit of the Company's or its Subsidiaries' vendors or customers, (E) profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plans or arrangements for the benefit of current or former employees or directors of the Company and its Subsidiaries, (F) collective bargaining or similar agreements, (G) agreements for the employment or retention of any individual on a full-time, part-time, consulting, or other basis not terminable on less than thirty (30) days notice without penalty or cost, (H) agreements under which it has continuing obligations advanced or loaned any amount in excess of $10,000 to develop any Intellectual Property Rights of the employees or affiliates of the Company, except for reimbursable business expenses (as determined in accordance with the Company's established employee reimbursement policies and consistent with past practices), (I) agreements for the purchase or receipt of materials, software, supplies, goods, services, equipment or other assets that will not be owned, in whole provide for either annual or in part, aggregate payments by the Company or its Subsidiaries of $100,000 or more (other than Hydrocarbon Agreements), (J) sales, distribution, vendor or other similar agreements or arrangements providing for the sale, transfer or barter by the Company or its Subsidiaries of materials, supplies, goods, services, equipment, or other assets that provide for either annual or aggregate payments to the Company of $100,000 or more (other than Hydrocarbon Agreements), (K) agreements or term sheets relating to the acquisition or disposition of any business or assets of its Subsidiariesthe Company (whether by merger, sale of stock, sale of assets or otherwise), excluding documentation relating to this Agreement and agreements or terms sheets in existence prior to December 31, 1998, (L) Hydrocarbon Agreements; and (M) other agreements which are material to the Company (collectively the "Company Material Agreements").
(ii) The Company has delivered to Parent a true, complete and correct copy of each Company Material Agreement.
(iii) Each Company Material Agreement is in full force and effect, has not been modified or (D) any Contract to license any third party to manufacture or produce any productamended and constitutes the legal, service or technology valid and binding obligation of the Company or any its Subsidiaries, as the case may be, enforceable in accordance with its terms and will continue to be so on identical terms immediately following the consummation of its Subsidiaries or any Contract to sellthe transactions contemplated by this Agreement, distribute or commercialize any products or service of and the Company or any of its Subsidiaries, as the case may be, are not in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or default under any of its Subsidiaries; or
(xiii) such agreements, nor has any other Contract that is not terminable at will (event or circumstance occurred that, with no penalty notice or payment) lapse of time or both, would constitute any event of default by the Company or its Subsidiaries, as applicable, and the case may be. No other party to any of the Company Material Agreements (A) which involves payment is, to the knowledge of the Company, in default in the performance of any covenant or receipt obligation to be performed by the Company or its Subsidiaries after the date of this Agreement under it pursuant to any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Company Material Agreement in excess of $500,000 in the aggregate, or (B) has given notice that is material it intends to terminate, or alter in any way adverse to the business or operations of the Company and Company, its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all performance under such Company Material Contracts, including all amendments theretoAgreement. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to neither the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or nor any of its Subsidiaries under is a party to any Company Material Contract contract, agreement or any other material term or provision arrangement which provides for payments in the event of any Company Material Contracta change of control.
Appears in 2 contracts
Samples: Merger Agreement (Apco Argentina Inc/New), Merger Agreement (Williams Companies Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) of Neither the Company Disclosure Schedule lists the following Company Contracts in effect as nor any of the date of this Agreement (other than its Subsidiaries has any Company Benefit Plans) (eachagreements, a “Company Material Contract” and collectively, the “Company Material Contracts”):
contracts or commitments which (i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to require payment by the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement Subsidiaries in excess of $200,000 pursuant to its express terms and not cancelable without penalty250,000 or (ii) require the making of any charitable contribution in excess of $50,000;
(vb) each Contract relating to the disposition No purchase contracts or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets purchase commitments of the Company or any of its Subsidiaries have a duration in excess of the normal, ordinary and usual requirements of the business of the Company or any loans its Subsidiary, as applicable;
(c) There are no outstanding sales contracts or debt obligations with officers or directors sales commitments of the Company or any of its SubsidiariesSubsidiaries which have a duration in excess of the normal, ordinary and usual practices of the business of the Company, and there are no outstanding contracts, bids or sales or service proposals quoting prices or terms which would not reasonably be expected to result in a normal profit;
(viid) each Contract requiring Except for (i) nondisclosure agreements entered into in the ordinary course; (ii) agreements for the trial, evaluation, purchase, sale, license, distribution, maintenance or support of Company products entered into in the ordinary course; (iii) agreements which require payment by or to the Company or any of its Subsidiaries after the date of this Agreement not in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions)250,000; (Biv) agreements which do not provide for any agreement involving provision term extension or expansion of services or products the rights granted with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, owned by the Company or any as a result of its Subsidiariesthe Merger; or (Dv) any Contract to license any third party to manufacture real property leases, licenses or produce any productother occupancy agreements (collectively, service "Real Property Leases") for individual properties listed in Section 3.15 of the Disclosure Schedule comprising less than 5,000 square feet, there are no contracts or technology agreements of the Company or any of its Subsidiaries which do not expire or any Contract to sell, distribute or commercialize any products or service of which the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is may not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries terminate within one year after the date of this Agreement under or which may be renewed at the option of any such agreement, contract or commitment of person other than the Company so as to expire more than $200,000 in the aggregate, or obligations one year after the date of this Agreement in excess of $500,000 Agreement;
(e) Except for (i) nondisclosure agreements entered into in the aggregate, ordinary course or (Bii) that is material to agreements for the business trial, evaluation, purchase, sale, license, distribution, maintenance or operations support of Company products entered into in the ordinary course, neither the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, nor any of its SubsidiariesSubsidiaries has (A) any contracts or agreements with officers, noremployees, to the Company’s Knowledgeagents, any other party to a Company Material Contractconsultants, has breachedadvisors, violated salesmen, sales representatives, distributors or defaulted under, dealers which require payment by or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries in excess of $250,000 and which are not cancelable by it on notice of not longer than thirty days and without liability, penalty or premium or (B) any contracts, agreements or arrangements providing for the payment of any bonus or commission based on sales or earnings, in each case where the cost to the Company will exceed $100,000;
(f) Neither the Company nor any of its Subsidiaries is in default, nor is there any known basis for any valid claim of default, under any contract made or obligation owed by it, except for such defaults that would not reasonably be likely to have, in the aggregate, a Company Material Contract Adverse Effect;
(g) Neither the Company nor any of its Subsidiaries has any employee to whom it is paying compensation at the annual rate of more than $200,000;
(h) Neither the Company nor any of its Subsidiaries is restricted by agreement from carrying on its business in any material respect anywhere in the world by any agreement under which the Company (i) is restricted from selling, licensing or otherwise distributing any of its technology or products or providing services to customers or potential customers or any class of customers, including resellers or other material term distributors, in any geographic area, during any period of time, or provision in segment of any market or line of business; (ii) is required to give favored pricing to any customers or potential customers or any class of customers (that is, required to give pricing to such customers or potential customers or classes of customers that is at least as good or better to that offered to others) or to provide exclusive or favored access to any product features, excluding exclusive customizations, to any customers or potential customers or any class of customers (it being understood that agreements to provide updates, enhancements or new versions as they become available shall not be considered "favorable access," nor shall agreements to provide alpha, beta or other similar restricted release versions of products); (iii) has agreed to purchase a material minimum amount of goods or services; or (iv) has agreed to purchase goods or services exclusively from a certain party;
(i) Neither the Company nor any of its Subsidiaries is under any liability or obligation with respect to the return of inventory or merchandise in the possession of wholesalers, distributors, resellers, retailers or other customers, except for such obligations or liabilities that would not reasonably be likely to have, in the aggregate, a Company Material Adverse Effect;
(j) Neither the Company nor any of its Subsidiaries has any debt obligation for borrowed money (other than capital leases), including guarantees of or agreements to acquire any such debt obligation of others (other than guarantees by the Company of obligations of its Subsidiaries);
(k) The Company and its Subsidiaries do not have contracts for capital expenditures exceeding $1,000,000 in the aggregate;
(l) Neither the Company nor any of its Subsidiaries has any contract, agreement or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business;
(m) Neither the Company nor any of its Subsidiaries has any contract, agreement or commitment for the purchase of any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(n) Neither the Company nor any of its Subsidiaries has any outstanding loan (other than any loan for employee relocation or any loan not in excess of $50,000) to any person other than to the Company or a wholly owned Subsidiary of the Company in an amount that exceeds $50,000;
(o) Neither the Company nor any of its Subsidiaries has any power of attorney outstanding or any material obligations or liabilities (whether absolute, accrued, contingent or otherwise), as guarantor (other than guarantees by the Company of obligations of its Subsidiaries), surety, co-signer, endorser or co-maker in respect of any obligation of any person, corporation, partnership, joint venture, association, organization or other entity, or any capital maintenance, keep-well or similar agreements or arrangements;
(p) Neither the Company nor any of its Subsidiaries has any agreements, contracts or arrangements containing any provision requiring the Company to indemnify another party (excluding indemnities contained in agreements for the trial, evaluation, purchase, sale, distribution, maintenance, support or license of products entered into in the ordinary course of business consistent with past practice and in any Real Property Leases) or, other than in the case of settlement agreements entered into prior to the date of this Agreement with current or former officers or employees of the Company in their individual capacity, containing any covenant not to bring legal action against any third party;
(q) The Company has made available to Parent true, complete and correct copies of each contract listed in Section 3.6 of the Disclosure Schedule (collectively, the "Material Contracts"); and
(i) Neither the Company nor any of its Subsidiaries has breached, is in default under, or has received written notice of any breach of or default under, any Material Contract, which breach or default remains uncured, (ii) to the Company's knowledge, no other party to any Material Contract has breached or is in default of any of its obligations thereunder, which breach or default remains uncured, (iii) each Material Contract is in full force and effect and (iv) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiary and each of the other parties thereto, enforceable in accordance with its terms, except that the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law).
Appears in 2 contracts
Samples: Merger Agreement (Emc Corp), Merger Agreement (Documentum Inc)
Agreements, Contracts and Commitments. Part 3.7 of the Tigris Disclosure Schedule identifies:
(a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each Tigris Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)employee benefit plans or arrangements;
(iib) each Tigris Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Tigris or its Subsidiaries on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit Tigris’ or its Subsidiaries’ ability to terminate employees at will;
(c) each Tigris Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Tigris Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Tigris and any of its officers or directors;
(iiie) each Tigris Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the CompanyTigris, its Subsidiaries a Tigris Subsidiary or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivf) each Tigris Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 100,000 and not cancelable without penalty;
(vg) each Tigris Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vih) each Tigris Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company Tigris or any of its Subsidiaries a Tigris Subsidiary or any loans or debt obligations with officers or directors of the Company Tigris or any of its Subsidiariesa Tigris Subsidiary;
(viii) each Tigris Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Tigris or any of its Subsidiaries; a Tigris Subsidiary (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Tigris or any of its Subsidiaries a Tigris Subsidiary has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Tigris or any of its Subsidiaries a Tigris Subsidiary has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Tigris or any of its Subsidiariesa Tigris Subsidiary; or (Div) any Contract currently in force to license any third party to manufacture or produce any product, service or technology of the Company Tigris or any of its Subsidiaries a Tigris Subsidiary or any Contract currently in force to sell, distribute or commercialize any products or service of the Company Tigris or any of its Subsidiaries, in each case, a Tigris Subsidiary except for Contracts entered into agreements with distributors or sales representatives in the Ordinary Course of Business;
(viiij) each Tigris Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Tigris or a Tigris Subsidiary in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiik) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company Tigris or its Subsidiaries after the date of this Agreement a Tigris Subsidiary under any such agreement, contract or commitment of $100,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (Bii) that is material to the business or operations of the Company Tigris and its Subsidiaries, taken as a whole.
(b) The Company . Tigris has delivered or made available to Parent Potomac accurate and complete (except for applicable redactions thereto) copies of all Company Tigris Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Tigris Material Contracts that are not in written form. As Except as set forth on Part 3.7 of the Tigris Disclosure Schedule, neither Tigris nor any Tigris Subsidiary, nor to the Knowledge of Tigris, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Tigris Material ContractContract (as defined below), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Tigris is a party or by which it is bound of the type described in clauses (a) through (j) above (any such agreement, any Company contract or commitment, a “Tigris Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Tigris Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Tigris Material Adverse Effect. As to the Company and its Subsidiaries, as The consummation of the date Contemplated Transactions shall not (either alone or upon the occurrence of this Agreement, each Company Material Contract is valid, binding, enforceable and additional acts or events) result in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid payment or payable payments becoming due from Tigris, a Tigris Subsidiary or the Surviving Corporation to the Company or any of its Subsidiaries Person under any Company Material Contract or any other material term or provision of any Company Material Tigris Contract.
Appears in 2 contracts
Samples: Merger Agreement (InterWest Partners IX, LP), Merger Agreement (Transcept Pharmaceuticals Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract that would be a relating to any material contract as defined in Item 601(b)(10) of Regulation Sbonus, deferred compensation, severance, incentive compensation, pension, profit-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)sharing or retirement plans, or any other employee benefit plans or arrangements;
(ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $150,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by the Company or its Subsidiaries on 90 calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law may limit the Company’s, its Subsidiaries’ or such successor’s ability to terminate employees at will;
(iii) each Company Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iv) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiv) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivvi) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(vvii) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viviii) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viiix) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiix) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixxi) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;; or
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent Meerkat accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Synlogic, Inc.), Merger Agreement (Mirna Therapeutics, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 4.13 of the Company Homology Disclosure Schedule lists the following Company Homology Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) the Subscription Agreement (each, a “Company Homology Material Contract” and collectively, the “Company Homology Material Contracts”):
(i) each Homology Contract that would be is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)collective bargaining agreement or other agreement or arrangement with any labor union, works council or labor organization;
(ii) each Homology Contract for the employment or engagement of any individual on an employee, consulting or other basis that provides for annual base compensation in excess of $200,000;
(iii) each Homology Contract with any Homology Associate that provides for retention, change in control, transaction or other similar payments or benefits, whether or not payable as a result of the Contemplated Transactions;
(iv) each Homology Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiv) each Homology Contract containing (A) any covenant limiting the freedom of the Company, Homology or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture, or distribution of Homology’s products or services, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement non-solicitation provision;
(vi) each Homology Contract (A) pursuant to purchase minimum quantity of goods or serviceswhich any Person granted Homology an exclusive license under any Intellectual Property, or (EB) pursuant to which Homology granted any material non-solicitation provisions applicable to the Company or Person an exclusive license under any of its SubsidiariesHomology IP Rights;
(ivvii) each Homology Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 500,000 pursuant to its express terms and not cancelable without penalty;
(vviii) each Homology Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $250,000 after the date of this Agreement;
(viix) each Homology Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $500,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Homology or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesHomology;
(viix) each Homology Contract requiring payment by or to the Company or any of its Subsidiaries Homology after the date of this Agreement in excess of $200,000 500,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Homology, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Homology or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Homology or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Homology or any of its Subsidiaries; such Subsidiary or (D) any Contract to license any Patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company Homology or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Homology or any of its Subsidiaries, in each case, except for Homology Contracts entered into in the Ordinary Course of Business;
(viiixi) each Homology Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Homology in connection with the Contemplated Transactions;
(ixxii) each Company Homology Contract to which Homology or any of its Subsidiaries is a party or by which any of their assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, Homology or such Subsidiary in excess of $500,000;
(xiii) a Homology Real Estate Lease;
(xxiv) each a Contract with any Governmental Body;
(xidisclosed in or required to be disclosed in Section 4.12(b) each Company Out-bound License and Company In-bound License;
(xiior Section 4.12(c) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesHomology Disclosure Schedule; or
(xiiixv) any other Homology Contract that is not terminable at will (with no penalty or payment) by the Company Homology or any of its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Homology or its Subsidiaries such Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 500,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 1,000,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company Homology and its Subsidiaries, Subsidiaries taken as a whole.
(b) The Company Homology has delivered or made available to Parent Q32 accurate and complete copies of all Company Homology Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Homology Material Contracts that are not in written form. As Homology has not, nor, to Homology’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Homology Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Homology Material Contract in such manner as would permit any other party to cancel or terminate any such Company Homology Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Homology Material Adverse Effect. As to the Company Homology and its Subsidiaries, as of the date of this Agreement, each Company Homology Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Homology Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Homology under any Company Homology Material Contract or any other material term or provision of any Company Homology Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Homology Medicines, Inc.), Merger Agreement (Homology Medicines, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any EntityEntity (excluding agreements for the sale or purchase of goods or services in the Ordinary Course of Business);
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances (other than Permitted Encumbrances) with respect to any assets of the Company or any of its Subsidiaries Group or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesGroup;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries Group after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries150,000, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Group in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesGroup; or
(xiiixii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its SubsidiariesGroup, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries Group after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 150,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 150,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As The Company Group has not, nor to the Knowledge of the Company, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, of or Laws applicable to, to any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Group or its business or operationsbusiness. As to the Company and its SubsidiariesGroup, as of the date of this Agreement, assuming due execution and delivery by the counterparties thereto, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, renegotiating any material amount paid or payable to the Company or any of its Subsidiaries Group under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Kubient, Inc.), Merger Agreement (Kubient, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Parent Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company Parent or any of its Subsidiaries;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(vii) each Parent Contract requiring payment by or to the Company Parent or any of its Subsidiaries after the date of this Agreement in excess of $200,000 400,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License;
(xii) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; orand
(xiii) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment Contract of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 300,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the CompanyParent, any of its Subsidiaries, norSubsidiaries or, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operations. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company Parent or any of its Subsidiaries under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (MorphImmune Inc.), Merger Agreement (Immunome Inc.)
Agreements, Contracts and Commitments. Neither Company nor any of its Subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Click2learn’s Board of the date of this Agreement (Directors, other than those that are terminable by Click2learn or any Company Benefit Plansof its Subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days’ notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Click2learn;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in the Ordinary Course ordinary course of Businessbusiness, that would not reasonably be expected to have a Material Adverse Effect on Click2learn, or any guaranty of the obligations of a Subsidiary of Click2learn;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Click2learn or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Click2learn or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments Subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Click2learn has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Click2learn’s Subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which Click2learn or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Click2learn or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Click2learn or any of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Click2learn and its Subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Click2learn product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Click2learn products, service or technology except agreements with distributors or sales representative in the normal course of business and substantially in the form previously provided to Docent;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within three (3) years prior to the Company or any of its Subsidiaries after the date of this Agreement with respect to which Click2learn has contingent obligations of a material nature; or
(k) any other agreement, contract or commitment that, either individually or taken together with all other contracts with the same party, (i) has in the past 12 months resulted in payments being made by Click2learn or revenue to Click2learn in excess of $200,000 pursuant 1,000,000 or (ii) will, if fulfilled in accordance with its terms, result in payments being made by Click2learn or revenue to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision Click2learn in excess of services or products with respect to any pre-clinical or clinical development activities of $1,000,000 in the Company or next 12 months. Neither Click2learn nor any of its Subsidiaries; , nor to Click2learn’s knowledge any other party to a Click2learn Contract (C) any dealeras defined below), distributoris in breach, joint marketingviolation or default under, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or and neither Click2learn nor any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in received written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Click2learn or any of its Subsidiaries is a party or by which it is bound that are required to be disclosed in the Click2learn Schedules (any such agreement, any Company Material Contract contract or commitment, a “Click2learn Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Material Click2learn Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Docent Inc), Agreement and Plan of Reorganization (Click2learn Inc/De/)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 2.14(a) of the Company Disclosure Schedule lists (specifying the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (eachappropriate paragraph), no Acquired Entity is a “Company Material Contract” and collectivelyparty to, the “Company Material Contracts”):or bound by:
(i) each (A) any employment, contractor or consulting Contract that would be a material contract as defined with an employee or individual consultant, contractor or salesperson, or (B) any Contract to grant any severance or termination pay (in Item 601(b)(10cash or otherwise) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)any employee or any contractor;
(ii) each Contract relating to any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of indemnification the benefits of which will be increased, or guaranty not entered into in the Ordinary Course vesting of Businessbenefits of which will be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries fidelity or the Surviving Corporation to engage in any line of business surety bond or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariescompletion bond;
(iv) each any Lease Agreement;
(v) any lease of personal property having an individual value in excess of $5,000;
(vi) any guaranty (excluding, for clarity, Acquired Entity Product warranties provided to customers in the ordinary course of business) or standalone agreement of indemnification;
(vii) any Contract relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty10,000 individually or $30,000 in the aggregate;
(vviii) each any Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of the Acquired Entities’ businesses;
(viix) each Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each any Contract with (including purchase orders) that involves performance of services or delivery of goods or materials by or to any Governmental BodyAcquired Entity of an amount or value in excess of $10,000 individually or $30,000 in the aggregate;
(xi) each Company Out-bound License and Company In-bound Licenseany joint marketing, joint venture, partnership, strategic alliance, affiliate or development agreement or outsourcing agreement other than consulting agreements substantially in the form of the Consultant Proprietary Information Agreement;
(xii) each Contract containing any royaltyhedging, dividend swap, derivative, ISDA or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; orContract;
(xiii) any dealer, distribution, sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor or other Contract that is not terminable at will (with no penalty for use or payment) by distribution of the Company products, technology or its Subsidiaries, as applicable, and (A) which involves payment or receipt by services of the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement Acquired Entities involving future payments in excess of $500,000 10,000 individually;
(xiv) any nondisclosure, confidentiality or similar agreement other than non-material nondisclosure, confidentiality or similar agreements entered into in the aggregateordinary course of business and materially similar in substance to the Company’s applicable Standard Form Agreement(s);
(xv) any Contract containing “most-favored nation” pricing or similar pricing terms;
(xvi) any Contract limiting the Company’s ability to engage in any business anywhere in the world, or otherwise providing for or relating to “non-competition”; or
(Bxvii) any other Contract that involves $10,000 individually or $30,000 in the aggregate or more and is material to the business or operations of the Company and its Subsidiaries, taken as a wholenot cancelable without penalty within 30 days.
(b) The Company has delivered or made available to Parent accurate true and complete copies of each Contract that has been requested by Parent or its counsel, which shall be deemed to include, but shall not be limited to, all Company Contracts required to be disclosed pursuant to Sections 2.3, 2.11, 2.12, 2.13(a) (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement), 2.13(a) and 2.15 and each of the other documents listed on the Disclosure Schedule. Each Contract disclosed pursuant to Sections 2.3, 2.11, 2.12, 2.13(a) and 2.13(a), 2.15 (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement) shall be referred to herein as a “Material Contract” and collectively, as the “Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b.”
(c) of the Company Disclosure Schedule, there are no Company Each Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Contract to which any Acquired Entity is a party or any of its Subsidiariesproperties or assets (whether tangible or intangible) is subject is a valid and binding agreement of such Acquired Entity, norand, to the Company’s KnowledgeKnowledge of the Acquired Entities and the Founders, any each other party thereto, enforceable against such Acquired Entity, and, to the Knowledge of the Acquired Entities and the Founders, each other party thereto, in accordance with its terms, and is in full force and effect with respect to such Acquired Entity and, to the Knowledge of the Acquired Entities and the Founders, each other party thereto, subject to (i) laws of general application relating to bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Each Acquired Entity that is a party to a Company Material Contract, Contract is in compliance in all material respects with and has not materially breached, violated or defaulted under, or received written (or to the Knowledge of the Acquired Entities and the Founders, oral) notice that it has breached, violated or defaulted under, any of the terms or conditions ofof such Material Contract. To the Knowledge of the Acquired Entities and the Founders (i) no party is obligated to the applicable Acquired Entity pursuant to any Material Contract that is subject to any material breach, violation or default thereunder, and (ii) there is no presently existing fact or circumstance that, with or without the lapse of time, giving of notice, or Laws applicable toboth would constitute such a material breach, any Company Material Contract in violation or default by such manner as would permit any other party to cancel Acquired Entity or terminate any such Company Material Contract, or would permit any other party party.
(d) Each Acquired Entity has performed all material obligations required to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right have been performed by such Acquired Entity pursuant to the terms of any Company each Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision which such Acquired Entity is a party.
(e) All outstanding Indebtedness for borrowed money of any Company Material ContractAcquired Entity may be prepaid without penalty.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Cornerstone OnDemand Inc)
Agreements, Contracts and Commitments. (a) Except as set forth on Section 2.14(a4.19(a) of the Seller Disclosure Letter, neither the Company Disclosure Schedule lists the following Company Contracts in effect as nor any of the date of this Agreement (other than any Company Benefit Plans) (each, its subsidiaries is a “Company Material Contract” and collectively, the “Company Material Contracts”):party to or is bound by:
(i) each Contract any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company’s Board of Directors, other than those that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming are terminable by the Company was subject or any of its subsidiaries on no more than thirty (30) days’ notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Company;
(ii) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Termination Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement or the Termination Agreement;
(iii) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale, license, distribution, reselling or other transfer of Businesssoftware products in the ordinary course of business or in connection with the provision of services in the ordinary course of business;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Company or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business presently conducted by the Company or any subsidiary, or to compete with any Person, person or granting any exclusive distribution rights;
(Bv) any “most-favored nations” pricing provisions agreement, contract or marketing commitment currently in force relating to the disposition or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to acquisition by the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to which the disposition or acquisition of material assets Company or any of its subsidiaries has any material ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than the Company’s subsidiaries;
(vi) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Seller or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Products, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon written notice of ninety (90) days or less;
(ix) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Leasecredit;
(x) each Contract with any Governmental Body;material settlement agreement entered into within three (3) years prior to the date of this Agreement; or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such material agreement, contract or commitment currently in force that is outside the ordinary course of more than $200,000 in the aggregate, business or obligations after the date of this Agreement in excess that has a value of $500,000 50,000 or more within a twelve (12) month period in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeany individual case.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of Neither the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, nor any of its Subsidiariessubsidiaries, nor, nor to the CompanySeller’s Knowledge, knowledge any other party to a Company Material ContractContract (as defined below), has breachedis in breach, violated violation or defaulted default under, or and neither the Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be set forth in the Seller Disclosure Letter (any such agreement, any contract or commitment, a “Company Material Contract Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Resonate Blends, Inc.), Stock Purchase Agreement (Resonate Blends, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be The Parent Disclosure Schedule sets forth a material contract as defined in Item 601(b)(10) true, complete and correct list of Regulation S-K as promulgated under all the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit following agreements, security agreements arrangements or other agreements understandings, whether written or instruments relating oral, to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company which Parent or any of its Subsidiaries is a party, (A) agreements relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed, secured by any asset or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(viiotherwise) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement for amounts in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); 1,000,000, (B) agreements for the lease of real or personal property to or from any agreement involving provision person with lease payments in excess of services $100,000 per year, (C) partnership agreements, joint venture agreements or products other similar agreements relating to similar business arrangements, (D) confidentiality or noncompetition agreements other than with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts confidentiality agreements entered into in the Ordinary Course ordinary course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to business for the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits benefit of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company Parent's or its Subsidiaries' vendors or customers, as applicable(E) profit sharing, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreementstock option, contract or commitment of more than $200,000 in the aggregatestock purchase, stock appreciation, deferred compensation, severance, or obligations after other plans or arrangements for the date benefit of this Agreement current or former employees or directors of Parent and its Subsidiaries, (F) collective bargaining or similar agreements, (G) agreements for the employment or retention of any individual on a full-time, part-time, consulting, or other basis not terminable on less than thirty (30) days notice without penalty or cost, (H) agreements under which it has advanced or loaned any amount in excess of $500,000 10,000 to any of the employees or affiliates of Parent, except for reimbursable business expenses (as determined in accordance with Parent's established employee reimbursement policies and consistent with past practices), (I) agreements for the aggregatepurchase or receipt of materials, software, supplies, goods, services, equipment or other assets that provide for either annual or aggregate payments by Parent or its Subsidiaries of $100,000 or more (other than Hydrocarbon Agreements), (J) sales, distribution, vendor or other similar agreements or arrangements providing for the sale, transfer or barter by Parent or its Subsidiaries of materials, supplies, goods, services, equipment, or other assets that provide for either annual or aggregate payments to Parent of $100,000 or more (Bother than Hydrocarbon Agreements), (K) that is agreements or term sheets relating to the acquisition or disposition of any business or assets of Parent (whether by merger, sale of stock, sale of assets or otherwise), excluding documentation relating to this Agreement and agreements or terms sheets in existence prior to December 31, 1998, (L) Hydrocarbon Agreements and (M) other agreements which are material to Parent (collectively the business or operations of the Company and its Subsidiaries, taken as a whole"Parent Material Agreements").
(bii) The Company Parent has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company a true, complete and its Subsidiaries, as correct copy of the date of this each Parent Material Agreement, each Company .
(iii) Each Parent Material Contract Agreement is valid, binding, enforceable and in full force and effect, subject has not been modified or amended and constitutes the legal, valid and binding obligation of Parent or its Subsidiaries, as the case may be, enforceable in accordance with its terms and will continue to be so on identical terms immediately following the consummation of the transactions contemplated by this Agreement, and Parent or its Subsidiaries, as the case may be, are not in default under any of such agreements, nor has any event or circumstance occurred that, with notice or lapse of time or both, would constitute any event of default by Parent or its Subsidiaries, as the case may be. No other party to any of the Parent Material Agreements (A) is, to the Enforceability Exceptions. No Person is renegotiatingknowledge of Parent, in default in the performance of any covenant or obligation to be performed by it pursuant to any such Parent Material Agreement or (B) has given notice that it intends to terminate, or has a right pursuant alter in any way adverse to the terms of any Company Parent, its performance under such Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Apco Argentina Inc/New)
Agreements, Contracts and Commitments. (a) Section 2.14(aSchedule 2.7(a) identifies, and the Company has made available to Buyer via the virtual data room, true, complete and correct copies of each of the following Contracts to which the Company Disclosure Schedule lists the following Company Contracts in effect as or any of the date of this Agreement (other than any Company Benefit Plans) its Subsidiaries is a party (each, a “Company Material Contract” and and, collectively, the “Company Material Contracts”):
(i) each Contract that would be a material any employment agreement or any other agreement, contract as defined or commitment (other than standard offer letters sent in Item 601(b)(10the Ordinary Course of Business and At-Will Employee Contracts) of Regulation S-K as promulgated under the Securities Act (assuming pursuant to which the Company was subject or any of its Subsidiaries is or may become obligated to the public reporting requirements pay compensation or benefits to any employee, executive officer or director of the Exchange Act)Company or any of its Subsidiaries;
(ii) each any Contract relating that contains a non-competition provision that (A) prohibits or materially limits (or would materially limit after the date hereof) the freedom or ability of the Company or any of its Subsidiaries to engage in any agreement type of indemnification business in any geographic area, or guaranty not entered into in the Ordinary Course of Business(B) creates any exclusive relationship;
(iii) each any Contract containing to which the Company or any of its Subsidiaries is a party (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any covenant limiting the freedom securities of any of the Company, Company or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any PersonSubsidiaries, (B) providing any “most-favored nations” pricing provisions Person with any preemptive right or marketing or distribution rights related any similar right with respect to any products securities of any of the Company or territoryany of its Subsidiaries, or (C) providing the Company or any exclusivity provision, (D) of its Subsidiaries with any agreement to purchase minimum quantity right of goods or servicesfirst refusal with respect to, or (E) right to repurchase or redeem, any material non-solicitation provisions applicable to securities of the Company or any of its Subsidiaries;
(iv) each any Contract relating to capital expenditures and requiring payments after (or group of related agreements with the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(vsame third parties) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of under which the Company or any of its Subsidiaries created, incurred, assumed or guaranteed any loans Debt or debt obligations with officers or directors hedge transaction in excess of the Company or any of its Subsidiaries$1,000,000;
(viiv) each any Contract requiring that contemplates or involves the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries after the date of this Agreement in an amount or having a value in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision 1,000,000 in the aggregate, or contemplates or involves the performance of services or products sale of goods by or to the Company or any of its Subsidiaries having a value in excess of $1,000,000 in the aggregate;
(vi) the Organizational Documents of the Company and its Subsidiaries and any other partnership, limited liability company, joint venture or other similar agreement that is material to the Company and its Subsidiaries and any Contract which provides for the sharing of any profits with respect the Company or any Subsidiary;
(vii) consulting, agency or advertising Contracts related to any pre-clinical the Assets or clinical development activities the Businesses of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development and involving payment to or other agreement currently in force under which by the Company or any of its Subsidiaries has continuing obligations in excess of $500,000, except for such Contracts that are cancelable on not more than thirty (30) days’ notice by the Company or any of its Subsidiaries without penalty or increased cost;
(viii) Contracts relating to develop acquisition, sale or market use of Intellectual Property, whether the Company or any product, technology of its Subsidiaries is the licensor or servicelicensee thereunder (but excluding off-the-shelf or prepackaged software license agreements) having a value in excess of, or under which the Company or Subsidiary is obligated to pay or is entitled to receive amounts in excess of $100,000 annually;
(ix) Contracts for the purchase or sale of any agreement business, corporation, partnership, joint venture, association or other business organization or any division, operating unit or product line of the Company or any of its Subsidiaries or Assets other than current Assets with a purchase price in excess of $500,000;
(x) any Contract granting another Person an option to purchase or sell (A) personal property or Assets of the Company or any of its Subsidiaries having a value in excess of $500,000 or (B) any interest in Owned Real Property;
(xi) Contracts pursuant to which the Company or any Subsidiary agrees to indemnify any Person or guaranty the obligations or performance of any Person, which indemnification or guaranty obligation is reasonably likely to exceed $500,000;
(xii) any Contract (or group of related Contracts) pursuant to which the Company or any of its Subsidiaries has continuing obligations committed to develop any Intellectual Property Rights that will not be owned, purchase fixed Assets or real property having an aggregate value in whole or in part, by the Company or any excess of its Subsidiaries$1,000,000; or and
(Dxiii) any Contract with sales representatives or distributors to license any third party to manufacture or produce any product, service or technology of which the Company or any of its Subsidiaries or any is a party, other than At-Will Sales Rep Contracts. Each Material Contract to sell, distribute or commercialize any products or service is a valid and binding agreement of the Company or one of its Subsidiaries and is in full force and effect, and neither the Company nor any of its Subsidiaries, Subsidiaries is in each case, except for Contracts entered into in the Ordinary Course material breach of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted default under, or has received notice in writing any claim or threat that it breached, violated is currently in material breach of or defaulted default under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to changeand there does not exist any event or condition that, with notice or lapse of time, or both, could constitute a material breach of or default under any material amount paid or payable to Material Contract. Neither the Company or nor any of its Subsidiaries has received notice of a claim for indemnification under any Company Material Contract or Contract. To the knowledge of the Company, no other party to such contract is in default thereof in any other material term or provision of any Company Material Contractrespect.
Appears in 2 contracts
Samples: Merger Agreement (Rock-Tenn CO), Merger Agreement (Rock-Tenn CO)
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision, in each case, except for restrictions that would not materially affect the ability of Parent to the Company or any of conduct its Subsidiariesbusiness;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000, other than Parent Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to xxx or otherwise enforce any Intellectual Property Rights;
(xii) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; orParent;
(xiii) each (A) Parent Contract, offer letter, employment agreement or other agreement with any employee that (1) is not immediately terminable at will by Parent without advance notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event) and (B) each Parent Contract, independent contractor agreement, or other agreement with any consultant or service provider that (1) is not immediately terminable at will by the Company without more than thirty (30) days’ prior notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event);
(xiv) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License;
(xv) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xvi) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeParent.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Other than as set forth in Section 3.13(b) of the Parent Disclosure Schedule, Parent has not, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, and no Person has indicated in writing to Parent that it desires to renegotiate, modify, not renew or cancel any Parent Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Rexahn Pharmaceuticals, Inc.), Merger Agreement (Rexahn Pharmaceuticals, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or provisions, (C) marketing or distribution rights related to any products or territory, (CD) any exclusivity provision, (DE) any agreement to purchase minimum quantity of goods or services, (F) granting to any Person a right of first refusal, a right of first negotiation or a right of first offer, in each case, to purchase, acquire, sell, exclusively license or dispose of any material assets or properties of Parent or any of the Parent Subsidiaries or granting to any Person an option to purchase, acquire, sell, exclusively license or dispose of any assets or properties that are material to Parent and the Parent Subsidiaries, taken as a whole, or (EG) any material non-solicitation provisions applicable to the Company Parent or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 150,000 pursuant to its express terms and not cancelable without material penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any material assets of the Company Parent or any of its Subsidiaries (other than licenses to Intellectual Property Rights under Contracts set forth in Section 3.13(a)(xi) of the Parent Disclosure Schedule) or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(vii) each Contract Contract, except for Contracts not requiring a payment in excess of $50,000 pursuant to its express terms by or to the Company Parent or any of its Subsidiaries after the date of this Agreement Closing Date that are cancellable without a penalty in excess of $200,000 pursuant to its express terms relating to50,000: (A) any that is a dealer or distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, that is a joint marketing, alliance, joint venture, cooperation, collaboration, collaboration or development or other agreement currently in force agreement; (D) under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that are not or will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (DE) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products product or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Parent Out-bound License (other than clinical trial agreements, non-disclosure agreements, and Company non-exclusive outbound licenses granted to service providers limited solely to such service providers performance of services for Parent or any of its Subsidiaries entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial rights to any products or services of Parent or its Subsidiaries) and Parent In-bound LicenseLicense (other than clinical trial agreements, services agreements, non-disclosure agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses and generally available patent license agreements entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial rights to any products or services of Parent or its Subsidiaries);
(xii) each Contract under which any third party develops any material Intellectual Property Rights for Parent or any Parent Subsidiary, other than individual consulting agreements that are substantially on Parent’s form of consulting agreement made available to the Company;
(xiii) each Contract containing any royalty, “earn-out,” dividend or similar arrangement contingent payment arrangement, including (x) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (y) payment of royalties or other amounts calculated based on the revenues revenues, income or profits of the Company Parent or any of its Subsidiaries; or
(xiiixiv) any other Contract that is not terminable at will (with no without penalty or paymentpayment in excess of $50,000) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment non-cancellable obligations on the part of, or receipt by the Company payments by, Parent or any of its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregateaggregate after the date hereof, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b3.13(b) of the Company Parent Disclosure Schedule, there are no Company Parent Material Contracts that are not in written form. As of the date of this Agreement, none of the CompanyParent, any of its Subsidiaries, nor, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which which, in each case, would reasonably be expected to be material and adverse to the Company Parent, its Subsidiaries or its their respective business or operations. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company Parent or any of its Subsidiaries under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, which would reasonably be expected to be material and adverse to Parent, its Subsidiaries or their business or operations.
Appears in 2 contracts
Samples: Merger Agreement (CalciMedica, Inc. /DE/), Agreement and Plan of Merger (Graybug Vision, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a3.11(a) of the Company Disclosure Schedule lists the following Company Contracts in effect lists, as of the date of this Agreement (other than Agreement, the following types of contracts and agreements to which the Company or any Company Benefit Plans) Subsidiary is a party or by which any of their respective assets is bound (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming and agreement with consideration paid or payable to the Company was subject to the public reporting requirements or any of the Exchange Act)Subsidiaries of more than $250,000, in the aggregate, over the past 12 months;
(ii) each Contract contract and agreement with suppliers to the Company or any Subsidiary, including those relating to the design, research, development, testing, manufacture, labeling, marketing, promotion, sale or distribution of products of the Company or any agreement Subsidiary, for expenditures paid or payable by the Company or any Subsidiary requiring payment obligation of indemnification an amount equal to or guaranty not entered into in the Ordinary Course of Businessgreater than $250,000 over any 12-month period;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries contract requiring payment by or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: to (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (CB) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights rights that will not be owned, in whole or in part, by the Company;
(iv) all management contracts (excluding contracts for employment) and contracts with other workers and consultants;
(v) all contracts or agreements involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any Subsidiary or income or revenues related to any product of its Subsidiaries; the Company or any Subsidiary to which the Company or any Subsidiary is a party pursuant to which the Company has paid an amount equal to or greater than $250,000 over any 12-month period;
(Dvi) all contracts and agreements evidencing indebtedness for borrowed money in an amount greater than $250,000, and any pledge agreements, security agreements or other collateral agreements in which the Company or any Subsidiary granted to any person a security interest in or lien on any of the property or assets of the Company or any Subsidiary, and all agreements or instruments guarantying the debts or other obligations of any person;
(vii) all partnership, joint venture or similar agreements;
(viii) all contracts and agreements with any Governmental Authority to which the Company or any Subsidiary is a party, other than any permits;
(ix) any Contract contract relating to license the acquisition or disposition of any third party to manufacture business or produce any productasset (whether by merger, service sale of stock, sale of assets or technology of otherwise) under which the Company or any of its Subsidiaries affiliates has or any Contract will have obligations with respect to sellan “earn out,” contingent purchase price or similar contingent payment obligation;
(x) all contracts and agreements that limit, distribute or commercialize any products or service purport to limit, the ability of the Company or any Subsidiary to compete in any line of its business or with any person or entity or in any geographic area or during any period of time, excluding customary confidentiality agreements and agreements that contain customary confidentiality clauses;
(xi) all Leases, and all leases or master leases of personal property, likely to result in annual payments of $250,000 or more in a 12-month period;
(xii) all contracts involving use of, or grant of any rights to or in, any Company-Licensed IP by or to the Company or any Subsidiaries;
(xiii) contracts which involve the license or grant of rights to Company Registered IP by the Company or any Subsidiary Company other than (A) contracts with customers on the Company’s standard form of customer agreement, copies of which have been made available in each casethe Virtual Data Room, except for Contracts (B) limited licenses to confidential information under non-disclosure and confidentiality agreements entered into in the Ordinary Course ordinary course of Businessbusiness, (C) agreements with employees, independent contractors or consultants on the Company’s standard form of invention assignment and proprietary information agreement or consultant agreement (copies of which have been made available to MEDS), and (D) other non-exclusive non-material licenses to Company Registered IP granted in the ordinary course of business;
(viiixiv) each Contract with all contracts for the development of Company Registered IP for the benefit of the Company, other than employment or consulting agreements entered into on the form of such agreement made available in the Virtual Data Room, without modification;
(xv) all contracts under which any Person, including any financial advisor, broker, finder, finder or investment banker is entitled to any brokerage, finder’s or other Person, providing advisory services to the Company fee or commission in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement which has a fee tail still in effect, based upon arrangements made by or on the revenues or profits behalf of the Company or any of its Subsidiaries; orSubsidiary;
(xiiixvi) all contracts that provide for the settlement of any other Contract Legal Proceeding that is not terminable at will (with no penalty or payment) by contains any ongoing obligation on the Company or its the Subsidiaries;
(xvii) all contracts between the Company and any holders of more than 2% of the Company Common Shares (assuming the full conversion or exercise of all Company Common Shares held by such person) that relate to such holder’s ownership of Company Common Shares;
(xviii) all contracts or agreements under which the Company has agreed to purchase goods or services from a vendor, as applicable, and supplier or other person on a preferred supplier or “most favored supplier” basis; and
(Axix) which involves payment or receipt by all agreements for the development of Company Registered IP for the benefit of the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeSubsidiary.
(b) (i) each Company Material Contract is a legal, valid and binding obligation of the Company or the Subsidiaries and, to the knowledge of the Company, the other parties thereto, and neither the Company nor any Subsidiary is in breach or violation of, or default under, any Company Material Contract nor has any Company Material Contract been canceled by the other party; (i) to the Company’s knowledge, no other party is in breach or violation of, or default under, any Company Material Contract; and (ii) the Company and the Subsidiaries have not received any written, or to the knowledge of the Company, oral claim of default under any such Company Material Contract, except for any such conflicts, violations, breaches, defaults or other occurrences which would not be expected to result in a Company Material Adverse Effect. No party to a Company Material Contract has given written notice of or, to the knowledge of the Company, threatened (A) any potential exercise of termination rights with respect to any Material Contract or (B) any non-renewal or modification of any Company Material Contract. The Company has delivered furnished or made available to Parent accurate MEDS in the Virtual Data Room true and complete copies of all Company Material Contracts, including all any amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts thereto that are not material in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, nature to the Company’s Knowledge, any other party to extent Company has a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any copy of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractContracts.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (TRxADE HEALTH, INC), Merger Agreement (TRxADE HEALTH, INC)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its SubsidiariesCompany;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(vii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 400,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Company Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesCompany; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment Contract of more than $200,000 300,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeCompany.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (MorphImmune Inc.), Merger Agreement (Immunome Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) of Neither the Company Disclosure Schedule lists nor any of its Subsidiaries has any agreements, contracts or commitments (including but not limited to end user license agreements) that (i) resulted in or will result in (A) payments by the following Company Contracts or its Subsidiaries during either fiscal year 2002 or fiscal year 2003 (up to the date of this Agreement) or (B) payments to the Company or its Subsidiaries during the period beginning in effect fiscal year 2002 and ending as of the date of this Agreement (other than any Company Benefit Plans) (eachAgreement, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement either case in excess of $200,000 pursuant to its express terms and not cancelable without penalty500,000; or (ii) which require the making of any charitable contribution in excess of $25,000;
(vb) each Contract relating to the disposition No purchase contracts or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets commitments of the Company or any of its Subsidiaries continue for a period of more than ninety (90) days or any loans or debt obligations with officers or directors are in excess of the Company or any normal, ordinary and usual requirements of its Subsidiariesthe business of the Company;
(viic) each Contract requiring payment by Except for agreements: (i) for the purchase, sale, license, distribution, maintenance or support of Company products entered into in the ordinary course; (ii) under which the Company made or received payments of less than $500,000 during calendar year 2002; or (iii) which do not provide for any term extension or expansion of the rights granted with respect to the Company Intellectual Property as a result of the Merger, there are no contracts or any of its Subsidiaries agreements to which the Company is a party that (a) do not expire or that the Company may not terminate within one year after the date of this Agreement in excess or (b) may be renewed at the option of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of person other than the Company or any so as to expire more than one year after the date of its Subsidiaries; this Agreement.
(Cd) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which Neither the Company or nor any of its Subsidiaries has continuing obligations to develop any outstanding contract (i) with any officer, employee, agent, consultant, advisor, salesman or market any product, technology or servicesales representative, or (ii) other than with respect to any reseller, distribution, OEM or end user license agreement pursuant to which for Company products entered into in the ordinary course of business, with any distributor or dealer that is not cancelable by it on notice of 30 days or less and without material liability, penalty or premium;
(e) Neither the Company nor any of its Subsidiaries is in default, nor is there any known basis for any valid claim of default, under any contract made or obligation owed by it except for such defaults that would not reasonably be likely to have a Company Material Adverse Effect;
(f) Neither the Company nor any of its Subsidiaries has continuing obligations any employee to develop whom it is paying compensation at an annual rate of more than $200,000.00 for services rendered;
(g) Neither the Company nor any Intellectual Property Rights that will not be ownedof its Subsidiaries is restricted from carrying on its business in any material respect anywhere in the world by any material agreement under which the Company (i) is restricted from selling, licensing or otherwise distributing any of its technology or products or providing services to customers or potential customers or any class of customers, including without limitation resellers or other distributors, in whole any geographic area, during any period of time, or in partsegment of any market or line of business, by (ii) is required to give favored pricing to any customers or potential customers or any class of customers or to provide exclusive or favored access to any product features to any customers or potential customers or any class of customers, or (iii) has agreed to purchase a minimum amount of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(h) Neither the Company nor any of its Subsidiaries has any liability or obligation with respect to the return of inventory or merchandise in the possession of wholesalers, distributors, resellers, retailers or other customers, except for such obligations or liabilities that would not reasonably be likely to have a Company Material Adverse Effect;
(i) Neither the Company nor any of its Subsidiaries has any debt obligation for borrowed money, including guarantees of or agreements to acquire any such debt obligation of others;
(j) Neither the Company nor any of its Subsidiaries has any contract for capital expenditures in excess of $250,000.00, individually, or such contracts representing in excess of $1,000,000.00 in the aggregate;
(k) Neither the Company nor any of its Subsidiaries has any contract, agreement or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business;
(l) Neither the Company nor any of its Subsidiaries has any contract, agreement or commitment for the purchase of any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(m) Neither the Company nor any of its Subsidiaries has any outstanding loan to any person other than to the Company or a wholly owned Subsidiary of the Company;
(n) Neither the Company nor any of its Subsidiaries; Subsidiaries has any power of attorney outstanding or any obligations or liabilities (Dwhether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor (other than indemnities contained in agreements for the purchase, sale, license, distribution, maintenance or support of products entered into in the ordinary course of business) or otherwise in respect of any Contract obligation of any person, corporation, partnership, joint venture, association, organization or other entity, or any capital maintenance, keep-well or similar agreements or arrangements;
(o) Neither the Company nor any of its Subsidiaries has any agreements, contracts or arrangements containing any provision requiring the Company to license indemnify another party (other than indemnities contained in agreements for the purchase, sale, license, distribution, maintenance or support of products entered into in the ordinary course of business) or containing any covenant not to bring legal action against any third party;
(p) The Company has made available to Parent true, complete and correct copies of each contract listed in Section 3.6 of the Disclosure Schedule (collectively, the “Material Contracts”); and
(i) Neither the Company nor any of its Subsidiaries has materially breached, is in material default under, or has received written notice of any material breach of or material default under, any Material Contract and such breach or default remains uncured, (ii) to the Company’s knowledge, no other party to manufacture any Material Contract has materially breached or produce is in material default of any productof its obligations thereunder which breach or default remains uncured, service or technology (iii) each Material Contract is in full force and effect and (iv) each Material Contract is a legal, valid and binding obligation of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, norSubsidiary and, to the Company’s Knowledgeknowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any each of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, bindingparties thereto, enforceable in accordance with its terms, except that the enforcement thereof may be limited by (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general equitable principles (regardless of whether enforceability is considered in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, a proceeding in equity or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractat law).
Appears in 2 contracts
Samples: Merger Agreement (Legato Systems Inc), Merger Agreement (Emc Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(x) each Company Contract required to be listed on Section 2.12(c) or Section 2.12(d) of the Company Disclosure Schedule;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiixii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received written notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization, Merger Agreement (Aviragen Therapeutics, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a4.14(a) of the Company Keystone Disclosure Schedule lists the following Company Keystone Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Keystone Material Contract” and collectively, the “Company Keystone Material Contracts”):
(i) each Keystone Contract that would be a material contract as defined requiring payments by Keystone or any of its Subsidiaries after the date of this Agreement in Item 601(b)(10) excess of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject $250,000 per annum pursuant to its express terms relating to the public reporting requirements employment of, or the performance of employment-related services by, or engagement by any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by Keystone or its Subsidiaries on ninety (90) calendar days’ or less notice without liability, except to the Exchange Act)extent general principles of wrongful termination Law may limit Keystone’s, its Subsidiaries’ or such successor’s ability to terminate employees, consultants or independent contractors at will;
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Keystone Contract containing (A) any covenant limiting the freedom of the CompanyKeystone, its Subsidiaries or the U.S. Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of Keystone’s products or services, (B) any “most-favored nations” pricing provisions arrangement, or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iviii) each Keystone Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 per annum pursuant to its express terms and not cancelable without penalty;
(viv) each Keystone Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Keystone Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 per annum or creating any material Encumbrances with respect to any assets of the Company Keystone or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesKeystone;
(viivi) each Keystone Contract requiring payment by or to the Company Keystone or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 per annum pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Keystone or any of its Subsidiaries; , (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Keystone or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Keystone or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; Keystone or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company Keystone or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service services of the Company Keystone or any of its Subsidiaries;
(vii) each Keystone Contract for the establishment of a partnership, in each case, except for Contracts entered into in the Ordinary Course of Businessjoint venture or other similar organizational form;
(viii) each Keystone Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Keystone or any of its Subsidiaries in connection with the Contemplated Transactions;
(ix) each Company Keystone Real Estate Lease;
(x) each Keystone Contract with any Governmental Body;that is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act; or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Keystone Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company to which Keystone or any of its Subsidiaries; or
(xiii) Subsidiaries is a party or by which any other Contract that of its or their assets and properties is not terminable at will (with no penalty or payment) by the Company or its Subsidiariescurrently bound, as applicable, and (A) which involves annual obligations of payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregateby, or obligations after the date of this Agreement annual payments to, Keystone or such relevant Subsidiary in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole250,000.
(b) The Company Keystone has delivered or made available to Parent Check-Cap accurate and complete copies of all Company Keystone Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Keystone Material Contracts that are not in written form. As Neither Keystone nor any of its Subsidiaries has, nor to Keystone’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Keystone Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Keystone Material Contract in such manner as would permit any other party to cancel or terminate any such Company Keystone Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Keystone Material Adverse Effect. As to the Company Keystone and its Subsidiaries, as of the date of this Agreement, each Company Keystone Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Keystone Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Keystone under any Company Keystone Material Contract or any other material term or provision of any Company Keystone Material Contract.
Appears in 2 contracts
Samples: Business Combination Agreement (Check-Cap LTD), Business Combination Agreement (Check-Cap LTD)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision, in each case, except for restrictions that would not materially affect the ability of the Company or any of and its SubsidiariesSubsidiaries to conduct its business;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000, other than Company Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to xxx or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or;
(xii) each (A) Company Contract, offer letter, employment agreement or other agreement with any employee that (1) is not immediately terminable at will by the Company without advance notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event) and (B) each Company Contract, independent contractor agreement, or other agreement with any consultant or service provider that (1) is not immediately terminable at will by the Company without more than thirty (30) days’ prior notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event);
(xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute;
(xv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole; and
(xvi) each Subscription Agreement.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As Neither the Company nor any of its Subsidiaries has, nor to the Company’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Rexahn Pharmaceuticals, Inc.), Merger Agreement (Rexahn Pharmaceuticals, Inc.)
Agreements, Contracts and Commitments. Except as otherwise set forth in the Launch Disclosure Schedules, neither Launch nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment agreement, contract or commitment with any employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Launch's Board of the date of this Agreement (Directors, other than those that are terminable by Launch or any Company Benefit Plans) (eachof its subsidiaries on no more than 30 days' notice without liability or financial obligation, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject except to the public reporting requirements extent general principles of the Exchange Act)wrongful termination law may limit Launch's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification outside the ordinary course of Launch's business or guaranty not entered into in the Ordinary Course of Businessany guaranty;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Launch or any of its Subsidiaries subsidiaries or the Surviving Corporation a Joint Venture to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Launch or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Launch has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Launch's subsidiaries or a Joint Venture;
(f) any licensing, distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement to which Launch or one of its subsidiaries or a Joint Venture is a party which may not be canceled by Launch or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $200,000 pursuant to 10,000 upon notice of 30 days or less or which provides for payments by Launch or its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition subsidiaries or acquisition of material assets or any ownership interest a Joint Venture in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement an amount in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities 10,000 over the term of the Company agreement or any to Launch or its subsidiaries or a Joint Venture in an amount in excess of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which $100,000 over the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology term of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessagreement;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiig) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 currently in the aggregateforce to license or provide source code to any third party for any product or technology; or
(h) any other agreement, contract or obligations after the date of this Agreement commitment currently in excess of $500,000 in the aggregate, or (B) effect that is material to the Launch's business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretopresently conducted. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Launch nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Launch's knowledge any Joint Venture or any other party to a Company Material ContractLaunch Contract (as defined below), has breachedis in breach, violated violation or defaulted default under, and neither Launch nor any of its subsidiaries nor, to the knowledge of Launch, any Joint Venture has received written notice (or received notice to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Launch or any of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be disclosed in the Launch Disclosure Schedules pursuant to clauses (a) through (h) above or pursuant to Section 3.9 hereof (any such agreement, any Company Material Contract contract or commitment, a "LAUNCH CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, Launch Contract or would permit any other party to seek damages or pursue other legal remedies the effect of which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company have a Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAdverse Effect on Launch.
Appears in 2 contracts
Samples: Merger Agreement (Launch Media Inc), Merger Agreement (Launch Media Inc)
Agreements, Contracts and Commitments. Except as otherwise set forth in the Launch Disclosure Schedules, neither Launch nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment agreement, contract or commitment with any employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Launch's Board of the date of this Agreement (Directors, other than those that are terminable by Launch or any Company Benefit Plans) (eachof its subsidiaries on no more than 30 days' notice without liability or financial obligation, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject except to the public reporting requirements extent general principles of the Exchange Act)wrongful termination law may limit Launch's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification outside the ordinary course of Launch's business or guaranty not entered into in the Ordinary Course of Businessany guaranty;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Launch or any of its Subsidiaries subsidiaries or the Surviving Corporation a Joint Venture to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Launch or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Launch has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Launch's subsidiaries or a Joint Venture;
(f) any licensing, distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement to which Launch or one of its subsidiaries or a Joint Venture is a party which may not be canceled by Launch or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $200,000 pursuant to 10,000 upon notice of 30 days or less or which provides for payments by Launch or its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition subsidiaries or acquisition of material assets or any ownership interest a Joint Venture in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement an amount in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities 10,000 over the term of the Company agreement or any to Launch or its subsidiaries or a Joint Venture in an amount in excess of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which $100,000 over the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology term of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessagreement;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiig) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 currently in the aggregateforce to license or provide source code to any third party for any product or technology; or
(h) any other agreement, contract or obligations after the date of this Agreement commitment currently in excess of $500,000 in the aggregate, or (B) effect that is material to the Launch's business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretopresently conducted. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Launch nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Launch's knowledge any Joint Venture or any other party to a Company Material ContractLaunch Contract (as defined below), has breachedis in breach, violated violation or defaulted default under, and neither Launch nor any of its subsidiaries nor, to the knowledge of Launch, any Joint Venture has received written notice (or received notice to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Launch or any of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be disclosed in the Launch Disclosure Schedules pursuant to clauses (a) through (h) above or pursuant to Section 3.9 hereof (any such agreement, any Company Material Contract contract or commitment, a "Launch Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, Launch Contract or would permit any other party to seek damages or pursue other legal remedies the effect of which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company have a Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAdverse Effect on Launch.
Appears in 2 contracts
Samples: Merger Agreement (Yahoo Inc), Merger Agreement (Yahoo Inc)
Agreements, Contracts and Commitments. (a) Except for this Agreement, the Related Agreements and the Contracts specifically identified on Section 2.14(a3.11(d) of the Company Disclosure Schedule lists (with each of such Contracts specifically identified or cross-referenced under subsection(s) of such Section 3.12 of the following Company Contracts in effect Disclosure Schedule that correspond to the Subsection or Subsections of this Section 3.12 of the Disclosure Schedule), as of the date Agreement Date, none of this Agreement the Company nor any of its Subsidiaries is a party to, bound by or uses the benefits of any of the following Contracts:
(i) (A) any employment, independent contractor or consulting Contract with any current Employee (other than any Company Benefit Plans) (eachPersonnel Agreements), a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each identifying whether any such Contract that would be a material contract as defined in Item 601(b)(10) of Regulation Sis not immediately terminable at-K as promulgated under the Securities Act (assuming will by the Company was subject without contractual severance, advance notice or other cost or liability (B) any Contract for severance, change of control payments or vesting acceleration, retention bonuses, or termination pay (in cash or otherwise) to any Employee or other separation agreement, (C) any other form of Employee Agreement with a current Employee (other than any Personnel Agreements), (D) any bonus or commission plan, or any bonus agreements or commission agreements with any Employee, and a schedule of bonus or commission commitments made to Employees, or (E) any settlement agreement with any Employee or other Person, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, (1) pursuant to which claims for harassment or discrimination were released; or (2) under which the public reporting requirements Company or any of its Subsidiaries has any current actual or potential Liability (in each case, other than waiver and releases in exchange for severance in the Exchange Actnormal course);
(ii) each any Contract or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which (A) shall be increased, or the vesting of {N4442029.10} 255288355 v23 benefits of which shall be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or (B) the value of any of the benefits of which shall be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any lease of any real property or personal property;
(iv) any Contract relating to capital expenditures and involving future payments in any agreement amount in excess of indemnification $5,000 individually or guaranty not entered into $100,000 in the aggregate, in each case in any fiscal year;
(v) any Contract relating to the disposition or acquisition of ownership of assets or any interest in any business enterprise outside the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating other Indebtedness;
(vii) any material Encumbrances purchase order or Contract for the purchase of tangible items of equipment or related services in any amount in excess of $5,000 individually or $100,000 in the aggregate, in each case in any fiscal year;
(viii) any Inbound License;
(ix) any Outbound License;
(x) any Contract with a Top Customer;
(xi) any Contract with a Top Supplier;
(xii) any Contract pursuant to which (A) the Company resells, distributes, or acts as a sales agent, OEM or other channel partner with respect to any assets products or services of a third party; or (B) any third party product or service is incorporated into, integrated with, or offered through or as a part of the Company Products;
(xiii) any Contract with a third party service provider to provide services to the Company’s customers as part of or in connection with Company Products;
(xiv) any confidentiality and non-disclosure agreements (whether the Company or any of its Subsidiaries is the beneficiary or the obligated party thereunder), other than with Parent or any loans of its Subsidiaries or debt obligations those related to commercial transactions in the Ordinary Course of Business that are not individually material;
(xv) any Contract with officers non-Employee third parties providing for “offshore” or directors outsourced development of any material items of Technology by, for or on behalf of the Company or any of its Subsidiaries;
(viixvi) each any Contract requiring required to be disclosed on Section 3.9 of the Disclosure Schedule; {N4442029.10} 255288355 v23
(xvii) any Contract with federal, state, city, county, parish, municipal or other Governmental Entities, or with another entity pursuant to that entity’s or any higher tier entity’s Contract with federal, state, city, county, parish, municipal or other Governmental Entities;
(xviii) (A) any management service, legal partnership or joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties to any other Person by or to the Company or any Subsidiary;
(xix) any agency, dealer, distribution, sales representative, remarketer, reseller, or other Contract for the distribution of its Subsidiaries after the date of this Agreement in excess of $200,000 Company Products;
(xx) any Contract pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries is bound to or has continuing obligations committed to develop provide any product or market service to any productthird party on a most favored nation basis or similar terms;
(xxi) any Contract granting any license or other rights to or from the Company or any of its Subsidiaries with respect to Personal Information, technology other than grants to service providers to use such Personal Information in connection with the provision of services to the Company or serviceany of its Subsidiaries;
(xxii) other than with respect to this Agreement and the Letter of Intent, any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or any of its Subsidiaries or assets of the Company or any of its Subsidiaries or otherwise seeking to influence or exercise control over the Company or any of its Subsidiaries, or any agreement Contract pursuant to which it has any material ownership in any other person;
(xxiii) any Contract pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop acquired a business or entity, or a material portion of the assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or otherwise;
(xxiv) any Intellectual Property Rights that will not be ownedagreement of indemnification with officers, in whole directors or in part, by managers of the Company or any of its Subsidiaries; or ;
(Dxxv) any Contract to license with any third party to manufacture investment banker, broker, advisor or produce any productsimilar party, service or technology of the Company or any of its Subsidiaries accountant, legal counsel or any Contract to sell, distribute or commercialize any products or service of other Person retained by the Company or any of its Subsidiaries, in connection with this Agreement and the transactions contemplated hereby;
(xxvi) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened or reasonably anticipated Legal Proceeding;
(xxvii) any Contract relating to a referral or partner arrangement under which the Company pays or receives compensation in exchange for the referral of a customer;
(xxviii) any Contract with a third party payor, including Governmental Entities; and
(xxix) any other Contract that involves the payment or receipt by the Company or any of its Subsidiaries of $5,000 individually or $100,000 in the aggregate or more, in each casecase in any fiscal year, except and is not cancelable without penalty within ninety (90) days. {N4442029.10} 255288355 v23
(b) The Company has made available correct and complete copies of each Contract required to be disclosed pursuant to Sections 3.2, 3.9, 3.10, 3.11 (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement and each Contract that is excluded for listing purposes only but is otherwise applicable to the Section), 3.12 and 3.19(a). For the purposes of this Agreement, each of the foregoing Contracts referenced in this subsection as well as any Contracts entered into subsequent to the Agreement Date and prior to the Closing Date that would have been required to be disclosed pursuant to Sections 3.2, 3.9, 3.10, 3.11 (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement and each Contract that is excluded for listing purposes only but is otherwise applicable to the Section), 3.12 and 3.19(a) if such Contract had been in effect as of the Ordinary Course of Business;Agreement Date, shall each be a “Material Contract” and collectively are the “Material Contracts.”
(viiic) each Contract with any PersonEach of the Company and its Subsidiaries has performed all the obligations required to be performed by it and is entitled to all benefits under, including any financial advisor, broker, finder, investment banker and has not received notice or other Personcommunication that it is in default of, providing advisory services any Material Contract. Each of the Material Contracts is valid, binding and enforceable against the Company or its Subsidiaries (to the Company extent such entity is a party to such Material Contract), and is in connection full force and effect, subject only to the effect, if any, of the Bankruptcy and Equity Exception. There exists no default or event of default or event, occurrence, condition or act, with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of respect to the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none Knowledge of the Company, any of its Subsidiaries, nor, with respect to the Company’s Knowledge, any other party to a Company Material Contractcontracting party, has breachedthat, violated with the giving of notice, the lapse of time or defaulted under, or received notice that it breached, violated or defaulted under, any the happening of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel event or terminate any such Company Material Contractcondition, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be (i) become a material to the Company default or its business or operations. As to the Company and its Subsidiaries, as event of the date of this Agreement, each Company default under any Material Contract is validor (ii) give any third party (A) (A) the right to declare a material default or exercise any remedy under any Material Contract, binding(B) the right to a rebate, enforceable and chargeback, refund, credit, penalty or change in full force and effectdelivery schedule under any Material Contract, subject (C) the right to accelerate the Enforceability Exceptions. No Person is renegotiating, maturity or has a right pursuant to the terms performance of any Company Material Contract to change, any material amount paid or payable to obligation of the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, or (D) the right to cancel, terminate or modify any Material Contract. None of the Company nor any of its Subsidiaries has received any written notice or other communication regarding any actual or alleged violation or breach of, default under, or intention to cancel or modify any Material Contract. None of the Company nor any of its Subsidiaries has any Liability for renegotiation of Contracts with Governmental Entities. The Company has heretofore made available to Parent correct and complete copies of each written Material Contract, together with any and all material amendments and supplements thereto and “side letters” and similar documentation relating thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists identifies the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Agreement: (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(x) each Company IP Rights Agreement required to be listed in Section 2.12(c) or Section 2.12(d) of the Company Disclosure Schedule;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract relating to any retention, change in control or transaction bonus or severance or other termination obligation to any Company Associate;
(xiii) each Company Contract relating to any agreement or plan, including any Benefit Plans, any benefits of which will be increased, or the vesting or payment of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(xiv) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $100,000 pursuant to its Subsidiariesexpress terms with any Company Associate, other than any such Company Contract that is terminable “at will” or upon not less than 60 days’ notice without any obligation on the part of the Company to make any severance, termination, change in control or similar payment or to provide any benefit; or
(xiiixv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 50,000 in the aggregate, or obligations after the date of this Agreement in excess of more than $500,000 50,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) Company. The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this AgreementThe Company has not, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party Person to cancel or terminate any such Company Material Contract, or would permit any other party Person to seek damages or pursue other legal remedies which would reasonably be expected to be material to the result in a Company or its business or operationsMaterial Adverse Effect. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract Contract, to change, terminate or change any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Samples: Merger Agreement (NTN Buzztime Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) of Except as ------------------------------------- identified in the Company Disclosure Schedule lists or listed in the following Company Contracts in effect as of Exhibit Index to the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation SCompany's Form 10-K as promulgated under for the Securities Act year ended September 30, 1998 (assuming the "Company 10-K"), neither the Company was subject nor any of its Subsidiaries is a party to the public reporting requirements of the Exchange Act);or is bound by:
(ii) each Contract relating to 1. any agreement of indemnification agreement, contract or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract contractually binding commitment containing (A) any covenant materially limiting the freedom of the Company, Company or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesperson;
(iv) each Contract 2. any agreement, contract or contractually binding commitment relating to capital expenditures and requiring payments after the date of this Agreement involving future obligations in excess of $200,000 pursuant to its express terms 150,000 and not cancelable without penalty;
3. any agreement, contract or contractually binding commitment currently in force relating (vi) each Contract relating to the disposition or acquisition of assets material assets to the Company and its Subsidiaries, taken as a whole, not in the ordinary course of business or (ii) any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise (other than the Company's wholly- owned subsidiaries and money market accounts and other short term investments);
(vi) each Contract relating to 4. any mortgages, indentures, loans, notes loans or credit agreements, agreements or security agreements relating to assets material to the Company and its Subsidiaries, taken as a whole, or other agreements or instruments relating to the borrowing of money or extension of credit involving more than $150,000;
5. any other agreement, contract, binding commitment or creating any material Encumbrances with respect to any assets of lease which requires annual payments by the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: 150,000 or more in the aggregate and is not cancelable without penalty within thirty (A30) days.
6. any distribution agreement (identifying consulting arrangements and contracts for professional, advisory and other services involving payments of more than $150,000 in any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealeryear, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force including contracts under which the Company or any of its Subsidiaries has continuing obligations performs services for others;
7. any material contracts relating to develop the source or market any productsupply of gas, technology or service, or any agreement pursuant propane and other raw materials essential to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology conduct of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole., and any financial derivatives master agreements, confirmations, or futures account opening agreements and/or brokerage statements evidencing financial hedging or other trading activities with respect to the foregoing;
(b) The Company has delivered 8. any contracts, agreements or made available contractually binding commitments relating to Parent accurate and complete copies the employment, engagement, compensation or termination of all Company Material Contractsdirectors, including all amendments thereto. Except as set forth in Section 2.14(b) officers, employees or agents of the Company Disclosure Scheduleor any of its Subsidiaries not included under Plans (as defined in Section 2.14);
9. any collective bargaining agreements;
10. any agreement, there are no contract or instrument (including amendments thereto) to which the Company Material Contracts or any of its Subsidiaries is a party or by which any of them is bound that are not is required to be included in written formthe Company 10-K; and
11. As any other contracts made other than in the usual or ordinary course of business of the date Company or any of this Agreementits Subsidiaries to which the Company or any of its Subsidiaries is a party or under which the Company or any of its Subsidiaries is obligated and material to the Company and its Subsidiaries, none of taken as a whole. Neither the Company, Company nor any of its Subsidiaries, nor, nor to the Company’s Knowledge, 's knowledge any other party to a Company Material ContractContract (as defined below), has breached, violated or defaulted under, or received notice that it breached, has breached violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which the Company or any Subsidiary is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, any contract or commitment, a "Company Material Contract Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies damages, in either case, which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each have a Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractAdverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Energynorth Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.19 of the Company Magellan Disclosure Schedule lists all Material Contracts of Magellan of Magellan and its Subsidiaries. Except as set forth in Section 3.19 of the following Company Contracts in effect Magellan Disclosure Schedule and as contemplated hereby, Magellan is not a party to, as of the date hereof, (i) any collective bargaining agreements or any agreements that contain any severance pay liabilities or obligations, (ii) any Employee Benefit Plans, (iii) any employment agreement, contract or commitment with an employee, or agreements to pay severance, (iv) any agreements between or among Magellan or one of this Agreement its Affiliates or with any Related Person of Magellan (other than agreements solely between or among Magellan and its wholly-owned Subsidiaries), (v) any Company Benefit Plans) (eachagreement, a “Company Material Contract” indenture or other instrument for borrowed money and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement or other instrument which contains restrictions with respect to payment of indemnification distributions in respect of Magellan Stock or guaranty not entered into in the Ordinary Course of Business;
any other outstanding Securities, (iiivi) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Magellan to engage or compete in any line of business or compete with any PersonPerson or in any geographic area during any period of time, (Bvii) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract commitment relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
50,000, (vviii) each Contract any agreement, contract or commitment relating to the acquisition, disposition or acquisition voting of material assets or capital stock of any ownership interest in any Entity;
(vi) each Contract relating to any mortgagesbusiness enterprise, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or including Magellan and any of its Subsidiaries, in each case(ix) any contract that requires Magellan to purchase its total requirements of any product or service from a third party or that contains “take or pay” provisions or that contains calls on, except or options to purchase, material quantities of Production, (x) any contract that provides for Contracts entered into in the Ordinary Course indemnification by Magellan of Business;
(viii) each Contract with any Person or the assumption of any Tax, environmental or other liability of any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and Company In-bound License;
advertising contract to which Magellan is a party, (xii) each Contract containing except for contracts relating to trade receivables, any royaltycontract relating to indebtedness (including guarantees) of Magellan, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract contract with any Governmental Authority to which Magellan is a party, (xiv) any contract to which Magellan is a party that is not terminable at will provides for any joint venture, partnership or similar arrangement by Magellan, (with no penalty xv) any agreement to sell, lease, farmout, exchange or payment) by otherwise dispose of all or any part of the Company or its Subsidiaries, as applicable, properties of Magellan from and (A) which involves payment or receipt by the Company or its Subsidiaries after the date Closing Date, but excluding rights of this Agreement under reassignment upon intent to abandon any such asset included in the properties of Magellan and excluding sales, in the ordinary course of Magellan’s business, of any obsolete inventory and equipment or Hydrocarbons, (xvi) any tax partnership agreement, contract (xvii) any agreement that constitutes a joint operating agreement, unit operating agreement, unitization or commitment pooling agreement, participation agreement, exploration agreement, development agreement, partnership agreement, joint venture agreement or similar agreement, (xviii) any agreement that provides for an irrevocable power of more than $200,000 attorney that will be in the aggregate, or obligations effect after the date of this Agreement in excess of $500,000 in the aggregate, Closing Date or (Bxix) any agreement that is material to the business or operations constitutes a lease of the Company and its Subsidiaries, taken as a whole.
(b) The Company real property. Magellan has delivered or made available to Parent Tellurian accurate and complete copies of all Company written Material Contracts, including all amendments thereto. All references to Magellan in this Section 3.19 shall be deemed to include the Magellan Subsidiaries.
(b) Except as set forth in Section 2.14(b) 3.19 of the Company Magellan Disclosure Schedule, there are no Company Material Contracts that are Magellan has not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, materially breached any of the terms or conditions ofof any lease, contract, agreement, commitment, instrument or Laws applicable tounderstanding (whether written or oral) set forth or required to be set forth in Section 3.19 of the Magellan Disclosure Schedule. There is not, under any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, any default or event which, with notice or lapse of time or both, would permit constitute a default on the part of any other party to seek damages of the parties thereto, or pursue other legal remedies which would reasonably be expected to be any notice of termination, cancellation or material modification.
(c) Except to the Company extent the enforceability thereof may be limited by Creditor Rights, each of the Material Contracts (i) constitutes the valid and binding obligation of Magellan or its business or operations. As to Subsidiaries and constitutes the Company valid and its Subsidiaries, as binding obligation of the date of this Agreementother parties thereto, each Company Material Contract (ii) is valid, binding, enforceable and in full force and effecteffect and (iii) immediately after the consummation of the Merger, subject will continue to the Enforceability Exceptions. No Person is renegotiating, constitute a valid and binding obligation of Magellan or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractSubsidiaries.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.9 of the Parent Disclosure Schedule identifies, except for Parent Contracts set forth in Part 3.13 of the Parent Disclosure Schedule:
(a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Parent Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject relating to the public reporting requirements retention of , or the Exchange Act)performance of services by, any individual consultant or independent contractor, not terminable by Parent or its Subsidiaries on 90 or fewer days’ notice without liability;
(iib) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Parent and any of its officers or directors;
(iiic) each Parent Contract containing (Ai) any covenant limiting the freedom of the CompanyParent, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, Person or (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (Cii) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods provisions binding on Parent or services, or (E) any material non-solicitation provisions its applicable to the Company or any of its SubsidiariesSubsidiary;
(ivd) each Parent Contract relating to capital expenditures and requiring payments involving obligations by Parent or its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms 100,000 and not cancelable without penalty;
(ve) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vif) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $150,000 or creating any material Encumbrances with respect to any assets of the Company Parent or any Subsidiary of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viig) each Parent Contract requiring involving payment or receipt by or to the Company Parent or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant 150,000 in the aggregate relating to its express terms relating to: (Ai) any distribution agreement or (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Parent;
(Ch) each Parent Contract involving (i) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaborationpartnership, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any such Subsidiary of its Subsidiaries; Parent or (Dii) any Contract to license any third party to manufacture or produce any Parent product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute sell or commercialize any Parent products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into agreements with sales representatives in the Ordinary Course of Business;
(viiii) each Parent Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixj) each Company Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company under which Parent or any of its SubsidiariesSubsidiaries is a licensee of or is otherwise granted by a third party any rights to use any Parent Third Party Intellectual Property (other than (i) non-exclusive licenses of commercially available software with an annual license fee of less than $15,000 for each such agreement and (ii) agreements in which grants of rights to Intellectual Property are incidental and not material to such agreements);
(k) each Parent Contract under which Parent or any of its Subsidiaries is a licensor or otherwise grants to a third party any rights to use any Parent Intellectual Property (other than agreements in which grants of rights to Intellectual Property are incidental and not material to such agreements); or
(xiiil) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract of $150,000 or commitment of more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 150,000 in the aggregate, aggregate or (Bii) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company . Parent has delivered or made available to Parent the Company accurate and complete (except for applicable redactions thereto) copies of all Company Parent Material ContractsContracts (as defined below), including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any Subsidiary of the date of this AgreementParent has, none of the Company, any of its Subsidiaries, nor, nor to the CompanyParent’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the Contracts to which Parent or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (l) above or any Parent Contract listed in Part 3.13 of the Parent Disclosure Schedule (any such Contract, or Laws applicable to, any Company a “Parent Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages damages, in each case which has had or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Parent Material Adverse Effect. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to: (i) laws of general application relating to bankruptcy, insolvency and the Enforceability Exceptionsrelief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. No Person is renegotiating, Parent has not received any written notice of termination or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries cancellation under any Company Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Inotek Pharmaceuticals Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Milan Disclosure Schedule lists the following Company Contracts identifies each Milan Contract that is in effect as of the date of this Agreement and is (other than any Company Benefit Plansa) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act Act, (assuming the Company was subject b) a Contract to which Milan or its Subsidiaries is a party or by which any of their respective assets and properties is currently bound, which, pursuant to the public reporting requirements express terms thereof, requires annual obligations of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or servicespayment by, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring annual payments after the date of this Agreement to, Milan in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
500,000, (vc) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
a Milan Real Estate Lease, (vid) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each a Milan Contract requiring payment by or to the Company Milan or any of its Subsidiaries after the date of this Agreement in excess of $200,000 500,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); , (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Milan or any of its Subsidiaries; , (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Milan or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Milan Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (Be) that is material a Contract disclosed in or required to the business be disclosed in Section 3.12(b) or operations Section 3.12(d) of the Company and its Subsidiaries, taken as a whole.
(b) The Company Milan Disclosure Schedule. Milan has delivered or made available to Parent the Company accurate and complete copies of all Company Contracts to which Milan is a party or by which it is bound of the type described in clauses (a)–(e) of the immediately preceding sentence (any such Contract, a “Milan Material ContractsContract”), including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Milan Material Contracts that are not in written form. As Neither Milan nor any of its Subsidiaries has, nor to Milan’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Milan Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Milan Material Contract in such manner as would permit any other party to cancel or terminate any such Company Milan Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Milan Material Adverse Effect. As to the Company Milan and its Subsidiaries, as of the date of this Agreement, each Company Milan Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Milan Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Milan under any Company Milan Material Contract or any other material term or provision of any Company Milan Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing containing: (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Company to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entityentity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development cooperation or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (DC) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesCompany; or
(xiiixi) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 200,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeCompany.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this AgreementThe Company has not, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Samples: Merger Agreement (SciSparc Ltd.)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 2.14(a3.12(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectivelySchedule, the “Company Material Contracts”):does not have any continuing obligations under, is not a party to or is not bound by:
(i) each Contract that would be a material any collective bargaining agreements, or any contract as defined with or commitment to any trade unions, employee bargaining agent or affiliated bargaining agent (collectively, "labor representatives") which relate to Employees employed in Item 601(b)(10) of Regulation S-K as promulgated under connection with, or providing services to, the Securities Act (assuming Media Business, and the Company was subject has not conducted any negotiations with respect to the public reporting requirements of the Exchange Act)any such future contracts or commitments;
(ii) each Contract relating any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements which relates to any agreement of indemnification Employees employed in connection with, or guaranty not entered into in providing services to, the Ordinary Course of Media Business;
(iii) each Contract any employment or consulting agreement, contract or commitment with an Employee or individual consultant employed by, or providing services to, the Media Business or consulting agreement, contract or commitment with a firm or other organization relating to the Media Business;
(iv) any agreement or plan, including any share option plan, share appreciation rights plan or share purchase plan which relates to any Employee employed by, or providing services to, the Media Business;
(v) any fidelity or surety bond or completion bond relating to, or arising in connection with, the Acquired Assets or the Media Business; ------------------------------------------ "[***]" INDICATES REDACTED INFORMATION FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ------------------------------------------
(vi) any lease of real or personal property relating to, or arising in connection with, the Acquired Assets or the Media Business;
(vii) any agreement of indemnification, guaranty or environmental corrective action or clean up obligation relating to, or arising in connection with, the Acquired Assets or the Media Business;
(viii) any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or to compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or servicesrelating to, or (E) any material non-solicitation provisions applicable to arising in connection with, the Company Acquired Assets or any of its Subsidiariesthe Media Business;
(ivix) each Contract any agreement, contract or commitment relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty500,000 arising in connection with the Acquired Assets or the Media Business;
(vx) each Contract any agreement, contract or commitment relating to the disposition of any Acquired Assets or the acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of business, consistent with past practices, relating to, or arising in connection with, the Acquired Assets or the Media Business;
(vixi) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company arising in connection with with, the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound LicenseAcquired Assets or the Media Business;
(xii) each Contract containing any royaltyPurchase Order or contract for the purchase of raw materials relating to, dividend or similar arrangement based on arising in connection with, the revenues Acquired Assets or profits of the Company or any of its Subsidiaries; orMedia Business;
(xiii) any distribution, joint marketing or development agreement relating to, or arising in connection with, the Acquired Assets or the Media Business;
(xiv) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of that involves $100,000 or more than $200,000 in the aggregaterelating to, or obligations after arising in connection with, the date of this Agreement in excess of $500,000 in Acquired Assets or the aggregateMedia Business; or
(xv) any agreement, contract or commitment that is not cancelable without material penalty within thirty (30) days relating to, or (B) that is material to arising in connection with, the business Acquired Assets or operations of the Company and its Subsidiaries, taken as a wholeMedia Business.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth noted in Section 2.14(b3.12(b) of the Company Disclosure Schedule, there are no the Company Material Contracts that are has not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any agreement, contract or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected commitment required to be material set forth in Section 3.12(a) of the Company Disclosure Schedule (collectively, "Contracts" and each, a "Contract"), nor, to the Company Company's knowledge, are there any events or its business circumstances that would in the Company's opinion be reasonably likely to give rise to such a breach, violation or operationsdefault with the lapse of time, giving of notice or both. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Each Contract is valid, binding, enforceable and in full force and effecteffect and, except as otherwise disclosed in Section 3.12(b) of the Company ------------------------------------------ "[***]" INDICATES REDACTED INFORMATION FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ------------------------------------------ Disclosure Schedule, is not subject to any default thereunder of which the Enforceability Exceptions. No Person Company is renegotiating, or has a right pursuant to the terms of aware by any Company Material Contract to change, any material amount paid or payable party obligated to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractpursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Privateer Disclosure Schedule lists Letter sets forth a complete and correct list (grouped according to the following Company categories described in the subsections below) of Privateer Contracts in effect that are executory as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Privateer Material Contract” and collectively, the “Company Privateer Material Contracts”):
(i) each Privateer Contract that would be a material contract as defined in Item 601(b)(10) relating to any agreement obligating Privateer or any of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject its Subsidiaries to the public reporting requirements indemnify, advance expenses to, or hold harmless any Person or any agreement of the Exchange Act)guaranty;
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Privateer Contract containing (A) any covenant limiting that purports to limit the freedom of the CompanyPrivateer, its Subsidiaries Subsidiaries, or the Surviving Corporation Company to engage in any line of business or compete with any PersonPerson in any geographic area or line of business, make sales to any Person in any manner, or develop, market or distribute products or service, (B) any “most-favored nations” pricing provisions arrangement, any type of discount rights, or marketing any right of first refusal, first notice or distribution rights related to any products or territoryfirst negotiation, (C) any exclusivity provision, (D) any agreement non-solicitation provision with respect to purchase minimum quantity employees of goods or servicesother Persons, or (E) any material non-solicitation provisions applicable restriction on the use, exploitation or enforcement of any Intellectual Property Rights owned by or exclusively licensed to the Company Privateer or any of its Subsidiaries;
(iviii) each Privateer Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Privateer Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $50,000, other than Privateer Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(viv) each Privateer Contract relating to Indebtedness, including any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Privateer or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any Privateer, in each case, having an outstanding principal in an amount in excess of its Subsidiaries$50,000;
(viivi) each Privateer Contract requiring payment by or to the Company or any of its Subsidiaries Privateer after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Privateer has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Privateer has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesPrivateer; or (DC) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Privateer or any Contract to sell, distribute or commercialize any products or service of Privateer or any of its Subsidiaries;
(vii) each Privateer Contract pursuant to which Privateer or any of its Subsidiaries has provided funds to or made any loan, capital contribution or other investment in, or assumed, guaranteed or agreed to act as a surety with respect to any Liability of, any Person;
(viii) each Privateer Contract for the Company issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, or the acquisition of tangible assets of a substantial nature or operating business of, Privateer or any of its Subsidiaries, or for the acquisition of any debt or equity security or other ownership interest of, or any tangible assets of a substantial nature or operating business of, any Person;
(ix) each Privateer Contract that requires a Consent of any Person in connection with, or otherwise contains a provision relating to a “change of control,” or that would prohibit or delay the consummation of, the Contemplated Transactions;
(x) each casePrivateer Contract wherein Privateer or its Subsidiaries grants or obtains a right or license to any Privateer IP, except other than (i) click-wrap or shrink-wrap standard licenses for Contracts commercially available off-the-shelf software; (ii) open source software; and (iii) agreements with any customer of Privateer or its Subsidiaries entered into in the Ordinary Course of Business;
(viiixi) each Privateer Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company Privateer in connection with the Contemplated Transactions;
(ixxii) each Company Privateer Real Estate Lease;
(xxiii) each Privateer Contract with any Governmental Body;
(xixiv) each Company Out-bound License and Company In-bound License;
(xii) each Privateer Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Privateer or any of its Subsidiaries;
(xv) each Privateer Contract relating to a joint venture or partnership, joint development, merger, asset or share purchase or divestiture involving Privateer or any of its Subsidiaries;
(xvi) each Privateer Contract relating to settlement of any Legal Proceedings;
(xvii) each Privateer Contract, offer letter, employment agreement, consulting agreement, or independent contractor agreement with any employee, consultant or independent contractor that (A) is not terminable at will, without notice, severance, or other cost or Liability, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any payment or benefit that may or will become due as a result of the Merger or the other Contemplated Transactions (whether alone or in connection with any other event); or
(xiiixviii) any other Privateer Contract that is not terminable at will (with no penalty or payment) by the Company Privateer or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Privateer or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment Contract of more than $200,000 50,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregate, or (B) that is material to the business or operations of the Company Privateer and its Subsidiaries, taken as a wholewhole (both where the ownership of capital stock of Tilray is and is not excluded from such materiality determination).
(b) The Company Privateer has delivered or made available to Parent Tilray accurate and complete copies of all Company Privateer Material Contracts, including all amendments restatements, modifications, amendments, and supplements thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Privateer Material Contracts that are not in written form. As Neither Privateer nor any of its Subsidiaries has, nor to Privateer’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Privateer Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Privateer Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company Privateer and its Subsidiaries, as of the date of this Agreement, each Company Privateer Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Privateer Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Privateer under any Company Privateer Material Contract or any other material term or provision of any Company Privateer Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Tilray, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(aSchedule 2.7(a) identifies, and the Company has made available to the Buyer, true, complete and correct copies of each of the following Contracts to which the Company Disclosure Schedule lists or any of its Subsidiaries is a party to the following Company extent not available in substantially complete form (excluding annexes, exhibits and schedules) on XXXXX (including any Contracts in effect as of made available on XXXXX by Xxxx Rental LLC and Xxxx Finance Corp. pursuant to the date of this Agreement (other than any Company Benefit PlansRegistration Statement on Form S-4, File No. 333-130841) (each, a “Company Material Contract” and and, collectively, the “Company Material Contracts”):
(i) each Contract that would be required to be filed as an exhibit to a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated Registration Statement on Form S-1 under the Securities Act (assuming or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company was subject to with the public reporting requirements Securities and Exchange Commission on the date of the Exchange Act)this Agreement;
(ii) each Contract relating to any employment agreement of indemnification or guaranty (other than (x) Contracts for “at will” employment that do not entered into in the Ordinary Course of Business;
contain any severance obligations and (iiiy) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to competition Contracts benefiting the Company between the Company and any employee of the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures ), and requiring payments after the date of this Agreement in excess of $200,000 any agreement, contract or commitment pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of which the Company or any of its Subsidiaries is or may become obligated to make any loans severance, termination or debt obligations with officers similar payment to any current or directors former employee, executive officer or director of the Company or any of its Subsidiaries;
(iii) any Contract that limits (or would limit after the date hereof) the freedom or ability of the Company or any of its Subsidiaries to compete in any material manner in any line of business or in any geographic area;
(iv) any Contract (other than Company Stock Options) to which the Company or any of its Subsidiaries is a party (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities of any of the Company or any of its Subsidiaries, (B) providing any Person with any preemptive right or any similar right with respect to any securities of any of the Company or any of its Subsidiaries, or (C) providing the Company or any of its Subsidiaries with any right of first refusal with respect to, or right to repurchase or redeem, any securities of the Company or any of its Subsidiaries;
(v) any Contract (or group of related agreements with the same third parties) under which the Company or any of its Subsidiaries created, incurred, assumed or guaranteed any Funded Debt or letters of credit (other than Contracts between the Company and any of its Subsidiaries or between Subsidiaries of the Company);
(vi) any Contract containing “standstill” or similar provisions currently in effect;
(vii) each any Contract requiring that contemplates or involves the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries after the date of this Agreement in an amount or having a value in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision 500,000 in the aggregate, or contemplates or involves the performance of services by or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Subsidiaries having a value in excess of $500,000 in the aggregate;
(Cviii) any dealerpartnership, distributorlimited liability company, joint marketing, alliance, joint venture, cooperation, collaboration, development venture or other similar agreement currently in force that is material to the Company and its Subsidiaries;
(ix) Contracts under which the Company or any of its Subsidiaries has continuing (x) lent or promised to lend, or made any other loan or advance to, or other investment in, any other Person, in each case, in excess of $50,000 or (y) lent or promised to lend, or made any other loan or advance to an executive officer or director of the Company or any of its Subsidiaries;
(x) distribution or franchise Contracts related to the assets or the businesses of the Company or any of its Subsidiaries, except for such Contracts that are cancelable on not more than thirty (30) days’ notice by the Company or any of its Subsidiaries without penalty or increased cost;
(xi) consulting, agency or advertising Contracts related to the assets or the businesses of the Company or any of its Subsidiaries, and involving payment to or by the Company or any of its Subsidiaries in excess of $250,000, except for such Contracts that are cancelable on not more than thirty (30) days’ notice by the Company or any of its Subsidiaries without penalty or increased cost;
(xii) Contracts relating to licenses or royalties, whether the Company or any of its Subsidiaries is the licensor or licensee thereunder (other than with respect to off-the-shelf or prepackaged software);
(xiii) Contracts for the purchase or sale of any business, corporation, partnership, joint venture, association or other business organization or any division, operating unit or product line of the Company or any of its Subsidiaries;
(xiv) Contracts for the lease (whether the Company or any of its Subsidiaries is lessee or lessor thereunder) or rental of any Rental Fleet with (A) a term of one year or longer or (B) where the aggregate payments under any lease where the Company or any of its Subsidiaries is the lessee thereunder are more than $1,000,000; Schedule 2.7(a)(xiv) lists, as of December 31, 2006, the original cost basis of all Rental Fleet subject to leases where the Company or any of its Subsidiaries is the lessee thereunder required to be disclosed on such schedule pursuant to this clause (xiv);
(xv) powers of attorney;
(xvi) Contracts under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries;
(xvii) any Contract granting another Person an option to purchase or sell (A) personal property or assets of the Company or any of its Subsidiaries having a value in excess of $500,000 or (B) any Owned Real Property;
(xviii) Contracts relating to commissions based on amounts paid for the sale, lease or rental of Rental Fleet to be paid by the Company or any of its Subsidiaries to any Person, other than an employee of the Company or any of its Subsidiaries, that are not terminable at the discretion of the Company or any of its Subsidiaries;
(xix) Contracts relating to suretyship or performance bond, whether the Company or any of its Subsidiaries is the beneficiary or obligor thereunder;
(xx) Contracts containing material indemnification or contribution obligations of the Company or any of its Subsidiaries, other than pursuant to develop the Contracts listed pursuant to Section 2.7(a)(viii); and
(xxi) Government Contracts involving payments in excess of $200,000.
(b) Neither the Company nor any of its Subsidiaries is currently in material breach of, or market has received in writing any productclaim or threat that it is currently in material breach of, technology any of the terms or serviceconditions of any Company Material Contract. Neither the Company nor any of its Subsidiaries has received notice of a claim for indemnification under any Company Material Contract.
(c) Each Company Material Contract is in full force and effect and, to the knowledge of the Company, no other party to such contract is in default in any material respect.
(d) Schedule 2.7(d) is a true and complete list as of March 4, 2007 of all purchase orders for Rental Fleet and Property, Plant and Equipment (as defined under GAAP) submitted by the Company or any of its Subsidiaries for which the equipment has not been received by the Company or its Subsidiaries as of the date hereof.
(e) To the Company’s knowledge, each of the Company’s and its Subsidiaries’ accounting and procurement systems are in compliance in all material respects with all material governmental regulations and requirements applicable to Government Contracts.
(f) To the Company’s knowledge, with respect to each Government Contract for which performance has not been or was not completed or final payment has not been or was not received, in either case, prior to the date that is three years prior to the date of this Agreement: (i) the Company and each of its Subsidiaries have complied with all material terms and conditions of such Government Contract; (ii) the Company and each of its Subsidiaries have complied with all material requirement of Law expressly pertaining to such Government Contract; (iii) all facts set forth in or acknowledged by any representations and certifications executed by the Company in connection with a Government Contract were complete and correct in all material respects as of their effective date, and the Company and each of its Subsidiaries have complied in all material respects with any material obligations imposed by such representations and certifications; (iv) neither the United States Government nor any prime contractor, subcontractor or other Person has notified the Company or any of its Subsidiaries, either orally or in writing, that the Company or any of its Subsidiaries has breached or violated in any material respect any Law, or any agreement pursuant material certification, representation, clause, provision or requirement pertaining to such Government Contract; and (v) no termination for convenience, termination for default, cure notice or show cause notice is in effect as of the date hereof pertaining to any Government Contract, except any notice that, individually or in the aggregate, has not had, and could not reasonably be expected to have, a Material Adverse Effect on the Company.
(g) Neither the Company nor any of its Subsidiaries nor to the knowledge of the Company any of their respective directors or officers is (or during the last three (3) years has been) under any material administrative, civil or criminal investigation, or indictment or audit by any Governmental Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract (other than in the ordinary course of business consistent with past practice, such as routine DCAA audits, in which no such irregularities, misstatements or omissions were identified that, individually or in the aggregate, had, or could reasonably be expected to have, a Material Adverse Effect on the Company); and during the last three (3) years, to the Company’s knowledge, neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation (other than in the ordinary course of business) or made a voluntary disclosure to the United States Government, with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract.
(h) To the Company’s knowledge, there are (i) no outstanding claims against the Company or any of its Subsidiaries, either by the United States Government or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Government Contract; (ii) no formal disputes between the Company or any its Subsidiaries, on the one hand, and the United States Government, on the other hand, under the Contract Disputes Act or any other Laws; and (iii) and no disputes between the Company or any of its Subsidiaries, on the one hand, and any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any Government Contract, except in each case, for any claim or dispute where the amount in dispute is not in excess of $100,000.
(i) Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge any of its or the applicable Subsidiary’s directors or officers is (or during the last three (3) years has been) suspended or debarred from participation in the award of contracts with any Governmental Authority or has been (or during such period was) found nonresponsible by any Governmental Authority (it being understood that debarment and suspension and nonresponsibility does not include ineligibility to bid for certain contracts due to generally applicable bidding requirements).
(j) No Government Contract to which the Company or any of its Subsidiaries is a party has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole an aggregate funded or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement unfunded backlog in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole1,000,000.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Neff Rental LLC)
Agreements, Contracts and Commitments. (a) Set forth in Section 2.14(a) 3.11 of the Company Disclosure Schedule lists are all of the following to which the Company or any of its Subsidiaries is a party: (i) agreements, contracts, indentures or other instruments or arrangements ("Contracts") relating to Indebtedness (as defined below) in an amount exceeding $100,000, (ii) partnership, joint venture or limited liability agreements with any person, (iii) Contracts in effect as pursuant to which the Company or any of its Subsidiaries will or may be obligated to issue after the date of this Agreement any equity securities (other than including Company Common Stock) or any security convertible equity securities (including Company Benefit PlansCommon Stock), (iv) Contracts which provide for the payment or receipt of consideration by the Company in excess of $100,000 in any 12-month period, (each, a “Company Material Contract” and collectively, v) Contracts to be performed after the “Company Material Contracts”):
(i) each Contract that date hereof which would be a material contract contracts (as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange ActSEC);
, (iivi) each Contract relating to any agreement Contracts which restrict the conduct of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; , (vii) Contracts which are not terminable by the Company within the next twelve months without the payment of any termination fee or penalty, (viii) all leases pursuant to which the Company leases compressors and related equipment that provide for lease payments of more than $100,000 on an annual basis and (ix) Contracts which include provisions relating to non-competition or non-solicitation or non-hiring of employees (collectively, the "Company Material Contracts"). "Indebtedness" means any liability in respect of (A) borrowed money, (B) capitalized lease obligations, (C) the deferred purchase price of property or services (other than trade payables in the ordinary course of business) and (D) guarantees of any Contract to license of the foregoing incurred by any third party to manufacture or produce any product, service or technology of other person other than the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its wholly owned Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.11 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):is:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each a Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each a Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivd) each a Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(ve) each a Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vif) each a Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viig) each a Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesParent, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viiih) each a Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixi) each Company a Contract with a labor union, labor organization, or similar Person;
(j) a Parent Real Estate Lease;
(xk) each a Contract with any Governmental Body;
(xil) each Company Out-bound License and Company In-bound Licensea Parent IP Agreement or other Contract required to be disclosed on Section 3.10 of the Parent Disclosure Schedule;
(xiim) each a Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent; or
(xiiin) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company Parent. Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received written notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) of the Company The K*TEC Disclosure Schedule lists the following Company Contracts contains a complete and accurate list of all leases, contracts and arrangements described below in effect as of the date of this Agreement clauses (other than any Company Benefit Plansi) through (each, xi) below to which K*TEC is a “Company Material Contract” and collectively, the “Company party or relating primarily to K*TEC's business ("K*TEC Material Contracts”):") ------------------------
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements or arrangement with any of the Exchange Act)customers of K*TEC listed on the K*TEC Disclosure Schedule involving performance of services or delivery of goods or materials to K*TEC of an amount or value in excess of $100,000, other than purchase orders received by K*TEC in the ordinary course of business requiring K*TEC to perform services or deliver goods;
(ii) each Contract relating contract or arrangement with any of the suppliers to any agreement K*TEC listed on the K*TEC Disclosure Schedule involving performance of indemnification services or guaranty not delivery of goods or materials to K*TEC of an amount or value in excess of $100,000, other than purchase orders entered into by K*TEC in the Ordinary Course ordinary course of Businessbusiness for the purchase of services or goods by K*TEC;
(iii) each Contract containing (A) any covenant limiting the freedom note, debenture, other evidence of the Companyindebtedness, its Subsidiaries guarantee, loan, letter of credit, surety bond or the Surviving Corporation to engage in any line of business financing agreement or compete with any Personinstrument or other contract for money borrowed, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) including any agreement to purchase minimum quantity of goods or servicescommitment for future loans, credit or (E) any material non-solicitation provisions applicable to the Company financing entered into by K*TEC or by which K*TEC or any of its Subsidiariesproperties or assets are bound;
(iv) each Contract relating to capital expenditures lease, rental or occupancy agreement, license, installment and requiring conditional sales agreement, and other contract or arrangement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property and involving aggregate payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty100,000;
(v) each Contract relating licensing agreement or other agreement with respect to patents, trademarks, copyrights, or other intellectual property and involving aggregate payments in excess of $100,000, and each agreement with current or former employees, consultants, or contractors regarding the disposition appropriation or acquisition the nondisclosure of material assets or any ownership interest in any EntityIntellectual Property;
(vi) each Contract collective bargaining agreement or other agreement to or with any labor union or other employee representative of a group of employees relating to any mortgageswages, indentures, loans, notes or credit agreements, security agreements or hours and other agreements or instruments relating to the borrowing conditions of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariesemployment;
(vii) each Contract requiring payment by joint venture agreement, partnership agreement, or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution limited liability company agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company (however named) involving a sharing of profits, losses, costs or liabilities by K*TEC with any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessother Person;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to agreement that commits capital expenditures after the Company date hereof in connection with the Contemplated Transactionsan amount in excess of $100,000;
(ix) each Company Real Estate Leasepower of attorney which is currently effective and outstanding;
(x) each Contract with agreement between K*TEC and any Governmental Body;of its Affiliates or Subsidiaries; and
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royaltywritten warranty, dividend guaranty or other similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any undertaking with respect to contractual performance extended by K*TEC other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date ordinary course of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholebusiness.
(b) The Company has True and correct copies of each written K*TEC Material Contract have been delivered or made available to Parent accurate EFTC.
(c) Except as set forth on the K*TEC Disclosure Schedule, each of the K*TEC Material Contracts listed on the K*TEC Disclosure Schedule: (i) is in full force and complete copies effect, and (ii) represents the legally valid and binding obligation of all Company Material ContractsK*TEC and, including all amendments to the knowledge of K*TEC, the other parties thereto, and is enforceable against K*TEC and such parties in accordance with its terms. Except as set forth on the K*TEC Disclosure Schedule, K*TEC is not in Section 2.14(bmaterial breach of any K*TEC Material Contract and to K*TEC's knowledge no condition exists or event has occurred which, with notice or lapse of time or both, would constitute a material default or a basis for force majeure or the claim of excusable delay or nonperformance under such K*TEC Material Contracts, except for conditions that would not, individually or in the aggregate, have a K*TEC Material Adverse Effect.
(d) of Except as set forth on the Company K*TEC Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreementrenegotiations of, none of the Company, any of its Subsidiaries, noror, to the Company’s KnowledgeK*TEC's knowledge, any other party attempts to a Company Material Contract, has breached, violated or defaulted underrenegotiate, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party outstanding rights to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to changerenegotiate, any material amount amounts paid or payable to K*TEC under current or completed K*TEC Material Contracts, with any Person or entity having the Company contractual or statutory right to demand or require such renegotiation. K*TEC has not received any of its Subsidiaries under any Company Material Contract or any other material term or provision written demand for such negotiation in respect of any Company Material such K*TEC Contract.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Thayer Blum Funding LLC)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.12 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan and Parent Contracts disclosed in the SEC Reports) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):is:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each Contract containing (A) any covenant limiting the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions provision applicable to the Company or any of its SubsidiariesParent;
(ivd) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(ve) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vif) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viig) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businessterms;
(viiih) each Parent Contract that is not terminable at will (with no penalty or payment) or without more than 30 days’ notice by Parent or its Subsidiaries;
(i) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixj) each Company Parent Real Estate Lease;
(xk) each Contract with any Governmental Body;
(xil) each Company Parent Out-bound License and Company Parent In-bound License;
(xiim) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or
(xiiin) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company . Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent or its Subsidiaries is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(n) (any such Contract, there together with any Parent Contract that would have been described in the foregoing clauses (a)-(n) but for the fact that such Parent Contract was disclosed in the SEC Reports, a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Part 3.7 of the Pivot Disclosure Schedule identifies:
(a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Pivot Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject relating to the public reporting requirements employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment related, consulting or independent contractor services, not terminable by Pivot on ninety (90) days notice without liability, except to the Exchange Act)extent general principles of wrongful termination law may limit Pivot’s ability to terminate employees at will;
(iib) each Pivot Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(c) each Pivot Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Pivot and any of its officers or directors;
(iiid) each Pivot Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Pivot or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ive) each Pivot Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 100,000 and not cancelable without penalty;
(vf) each Pivot Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vig) each Pivot Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Pivot or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesPivot;
(viih) each Pivot Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Pivot (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Pivot has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Pivot has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesPivot; or (Div) any Contract currently in force to license any third party to manufacture or produce any Pivot product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any Pivot products or service of the Company except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business;
(viiii) each Pivot Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Pivot in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiij) any other Contract that is not terminable at will agreement, contract or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement Pivot under any such agreement, contract or commitment of $100,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (Bii) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company Pivot. Pivot has delivered or made available to Parent Merger Partner accurate and complete (except for applicable redactions thereto) copies of all Company Material material written Merger Partner Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material material Pivot Contracts that are not in written form. As Except as set forth on Part 3.7 of the Pivot Disclosure Schedule, Pivot has not, nor to Pivot’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Pivot Material ContractContract (as defined below), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Pivot is a party or by which it is bound of the type described in clauses (a) through (f) above (any such agreement, any Company contract or commitment, a “Pivot Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Pivot Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Pivot Material Adverse Effect. As to the Company and its Subsidiaries, as The consummation of the date Contemplated Transactions shall not (either alone or upon the occurrence of this Agreement, each Company Material Contract is valid, binding, enforceable and additional acts or events) result in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid payment or payable payments becoming due from Pivot or the Surviving Corporation to the Company or any of its Subsidiaries Person under any Company Material Contract or any other material term or provision of any Company Material Pivot Contract.
Appears in 1 contract
Samples: Merger Agreement (Novacea Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (Agreement, other than any Company Benefit Plans) , which are covered in Section 2.17 (each, a “"Company Material Contract” " and collectively, the “"Company Material Contracts”"):
(i) each Company Contract that would be a material contract as defined in Item 601(b)(10) the primary purpose of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of which is indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to another Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of the Company or any of and its SubsidiariesSubsidiaries to conduct their respective businesses;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $25,000, other than Company Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries, in each case, having an outstanding principal in an amount in excess of $25,000;
(viivi) other than material transfer agreements and master service agreements in the Ordinary Course of Business, each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Company Contract to license or engage any third party to manufacture or produce any productproduct or drug substance, service or technology of the Company Company, any Contract for raw materials or warehousing of products or any of its Subsidiaries or any Company Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental BodyBody (other than clinical trial agreements for clinical trial studies);
(xix) each Company Out-bound License and Company In-bound License;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesSubsidiaries or obligation to pay any royalties, fees or other payments to any owner, licensor, or other claimant to any Intellectual Property Rights, in each case in excess of $25,000;
(xii) each Company Contract, offer letter, employment agreement or independent contractor agreement with any employee, consultant or independent contractor that (A) is not terminable by the Company without sixty (60) days' or more notice, without severance or other cost or liability, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event) (the "Benefit Contracts");
(xiii) each Company Contract that is a collective bargaining agreement or is with a professional employer agency, temporary employment agency or labor contractor; or
(xiiixiv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 25,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 25,000 in the aggregate, or (B) that is material to the business or operations of the Company and or any of its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As Neither the Company nor any of its Subsidiaries, has, nor to the Company's Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s KnowledgeAgreement has, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Company, any of its Subsidiaries or its business or operationstheir respective businesses. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.11(a) of the Company Disclosure Schedule lists Letter sets forth all contracts that are material to the following Company Contracts in effect as business or operations of the date Company or any Subsidiary or which by their terms seek to limit or define those activities in which the Company or any Subsidiary is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of this Agreement the transactions contemplated hereby or thereby (other than collectively, together with any Company Benefit Plansagreements disclosed in Section 2.11(a) (each, a “Company Material Contract” and collectivelyof the Disclosure Letter in response to the next sentence, the “Company Material Contracts”):). Except as set forth in Section 2.11(a) of the Disclosure Letter, the Company or any Subsidiary does not have, is not a party to nor is it bound by any of the following types of Material Contracts:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)any collective bargaining agreements;
(ii) each Contract relating to any agreement of indemnification agreements or guaranty not entered into in the Ordinary Course of Businessarrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) each Contract any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) except as set forth in Section 2.11(a)(v) of the Disclosure Letter, any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) with respect to benefits any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) except as set forth in Section 2.11(a)(vii) of the Disclosure Letter, any lease of real or personal property having a value individually in excess of $50,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or to compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesperson;
(ivx) each Contract any agreement, contract or commitment relating to current or future capital expenditures and requiring or involving future payments after the date of this Agreement individually in excess of $200,000 pursuant to its express terms and not cancelable without penalty50,000;
(vxi) each Contract any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of material assets assets, properties or any ownership interest in any Entitybusiness enterprise outside the ordinary course of the Company’s business;
(vixii) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Personcredit, including any financial advisor, broker, finder, investment banker guaranties or other Person, providing advisory services instruments of surety referred to the Company in connection with the Contemplated Transactionssubparagraph (vi) above;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $100,000 or more, other Contract that is not terminable at will than purchases in the ordinary course of business;
(with no penalty xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or paymentdevelopment agreement;
(xvi) by any agreement under which the Company’s products must satisfy any product standards or performance specifications or under which the Company has the right to include any logos, trademark, certification or similar endorsement of any third party organization on its Subsidiaries, as applicable, and products; or
(Axvii) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such other agreement, contract or commitment of more than $200,000 that involves or could result in payments to or by the aggregate, or obligations after the date of this Agreement in excess Company of $500,000 in the aggregate, 100,000 or (B) that more or is material to the business or operations of not cancelable by the Company and its Subsidiaries, taken as a wholewithout penalty within one hundred eighty (180) days.
(b) The Company has delivered Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or made available to Parent accurate and complete copies default with the lapse of time, giving of notice, or both, all Company Material Contracts, including all amendments thereto. Except as set forth noted in Section 2.14(b2.11(b) of the Disclosure Letter, the Company Disclosure Schedulehas not since June 30, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has 2003 breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Each Material Contract is valid, binding, enforceable and in full force and effect, effect and is not subject to any default thereunder of which the Enforceability Exceptions. No Person is renegotiating, or Company has a right pursuant to the terms of knowledge by any Company Material Contract to change, any material amount paid or payable party obligated to the Company pursuant thereto. The Company will use commercially reasonable efforts to obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any and all contracts and agreements as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements in order to avoid any breach or any of its Subsidiaries under any Company Material Contract default thereunder or any other material term or provision the loss of any material rights thereunder, including all such consents, approvals or waivers necessary to validly transfer and assign all such contracts and agreements to the Surviving Company Material Contract(the “Requisite Consents”).
Appears in 1 contract
Samples: Merger Agreement (K2 Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):and:
(i) each Contract that would be is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any is an agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing contains (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iv) each Contract relating relates to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating relates to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating relates to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(vii) each Contract requiring requires payment by or to the Company Parent or any of its Subsidiaries after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract is with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent or its Subsidiaries in connection with the Contemplated Transactions;
(ix) each Company is a Parent Real Estate Lease;
(x) each is a Contract with any Governmental Body;
(xi) each Company is a Parent Out-bound License and Company or Parent In-bound License;
(xii) each any Parent Investor Agreement;
(xiii) is a Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or
(xiiixiv) is any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 25,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 25,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent or its Subsidiaries is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Neither the Parent nor any of its Subsidiaries nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or any of its Subsidiaries or its business or operationsbusiness. As to the Company Parent and any of its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a4.18(a) of the Company Disclosure Schedule lists the following Letter sets forth a true, correct and complete list of each Company Contracts Material Contract that is in effect as of the date of this Agreement (other than any Company Benefit Plans) (eachAgreement. For purposes of this Agreement, a “Company Material Contract” and collectively, of the “Company Material Contracts”):shall mean each of the following Contracts to which a Company is a party as of the date hereof:
(i) each any Contract that would be a material contract as defined or purchase commitment reasonably expected to result in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming future payments to or by the Company was subject to the public reporting requirements in excess of the Exchange Act)$250,000 (or its equivalent in another currency) per annum;
(ii) each any Contract relating that purports to limit in any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing material respect (A) any covenant limiting the freedom of localities in which the CompanyCompany business may be conducted, its Subsidiaries or (B) the Surviving Corporation to engage Company from engaging in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provisionthe Company from developing, (D) any agreement to purchase minimum quantity of goods marketing or selling products or services, or including any business non-compete agreements;
(Eiii) any material Contract memorializing any Interested Party Transactions (other than those employment agreements, confidentiality agreements, non-solicitation provisions applicable to competition agreements (for the Company benefit of the Company) or any other agreement of similar nature entered into in the ordinary course of business with employees or technical consultants) providing for annual payments in an amount equal to or greater than $250,000 (or its Subsidiariesequivalent in another currency) per annum;
(iv) each any Contract relating that imposes obligation on the Company to capital expenditures and requiring payments after provide “most favored nation” pricing to any of its customers, or that contains any “take or pay” or minimum requirements with any of its suppliers, right of first refusal or other similar provisions with respect to any transaction engaged in by the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penaltyCompany;
(v) each any Contract relating that is related to the disposition governance or acquisition operation of material assets any joint venture, partnership or any ownership interest in any Entitysimilar arrangement;
(vi) each any Contract for or relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by or extension of credit or creating any material Encumbrances with respect to any assets of from the Company in excess of $250,000 (or its equivalent in another currency) per annum (excluding, for the avoidance of doubt, any of its Subsidiaries intercompany arrangements solely between or any loans or debt obligations with officers or directors of among the Company or any of its SubsidiariesCompany);
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating toContract: (A) providing for the grant of any distribution agreement (identifying preferential rights to purchase or lease any that contain exclusivity provisions)material asset of the Company; or (B) providing for any agreement involving provision of services exclusive or products with respect preferred right to sell or distribute any pre-clinical material product or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or material service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services Contracts relating to the sale of any operating business of the Company or the acquisition by the Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in connection with each case for which the Contemplated TransactionsCompany has any material outstanding obligations in excess of $100,000 (or its equivalent in another currency) per annum (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts for the purchase of inventory or supplies entered into in the ordinary course of business);
(ix) each Company Real Estate Leaseany collective bargaining agreement or other similar labor Contract with any labor union, labor organization, or works council;
(x) each any Contract with for the use by the Company of any Governmental Bodytangible property where the annual lease or mandate payments are greater than $250,000 (or its equivalent in another currency) (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business);
(xi) each Company Out-bound License and Company In-bound Licenseany Contract under which the Company: (A) obtains the right to use, or a covenant not to be sued under, any Intellectual Property from any third party (other than Incidental Inbound Licenses) or (B) grants the right to use, or a covenant not to be sued under, any Owned Intellectual Property to any third party (other than Incidental Outbound Licenses);
(xii) each any Contract containing that creates guarantees or Liens of any royalty, dividend or similar arrangement based nature on the revenues Company’s assets not in the ordinary course of business and in an amount equal or profits of the Company greater than $100,000 (or any of its Subsidiariesequivalent in another currency); orand
(xiii) any ongoing obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Contract that is not terminable at will Persons and in an amount equal or greater than $250,000 (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 equivalent in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeanother currency).
(b) The Except for any Company Material Contract that has delivered been terminated in accordance with the terms of this Agreement or made available terminates upon the expiration of the stated term thereof prior to Parent accurate the Closing Date and except as would not reasonably be expected to, individually or in the aggregate, be material to the Company, each Company Material Contract is in full force and effect and represents a legal, valid and binding obligation of the and, to the Knowledge of the Company, represents a legal, valid and binding obligation of the counterparties thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies. Neither the Company nor, to the Knowledge of the Company, any other party thereto (as of the date hereof), is in breach of or in default under, and, to the Knowledge of the Company, no event has occurred as of the date hereof which with notice or lapse of time or both would become a breach of or default under, any Company Material Contract and to the Knowledge of the Company, no party to any Company Material Contract has given written notice in the last 12 months of any claim of any such breach, default or event, or has provided in the last 12 months any formal written notice of any intention to terminate or materially modify, any such Company Material Contract. True, correct and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, have been made available to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractSPAC.
Appears in 1 contract
Samples: Business Combination Agreement (Mountain Crest Acquisition Corp. V)
Agreements, Contracts and Commitments. (a) Section 2.14(a) Part 2.13 of the Company Disclosure Schedule lists identifies each Company Contract to which the following Company Contracts in effect as is a party and to which the Company has any currently effective binding obligations or by which any of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):its assets are currently bound:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between the Company and any of its officers or directors;
(iiib) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivc) each Contract relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 25,000 and not cancelable without penalty;
(vd) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vie) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $25,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viif) each Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement currently in force (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision currently in force for the conduct of services or products with respect to any research, pre-clinical or clinical studies regarding the products under development activities of by the Company or any of its Subsidiaries; (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop develop, market, or market supply any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; such Subsidiary or (Div) any Contract currently in force to license any third party to manufacture or produce any Company product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any Company products or service of the Company except agreements with distributors or any of its Subsidiaries, in each case, except for Contracts entered into sales representatives in the Ordinary Course of Business;
(viiig) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixh) each with any manufacturer, vendor, or other Person for the supply of materials or performance of services by such third party to Company Real Estate Leasein relation to the manufacture of the Company’s products or Company Product Candidates;
(xi) each Contract with that would reasonably be expected to have a material effect on the ability of the Company to perform any Governmental Bodyof its material obligations under this Agreement, or to consummate any of the Contemplated Transactions;
(xij) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of $50,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 50,000 in the aggregate, or (Bii) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.; or
(bk) is a Company IP Right Agreement. The Company has delivered or made available to Parent Arrow accurate and complete copies of all Contracts to which the Company or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (k) above (any such Contract, a “Company Material ContractsContract”), including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As Except as set forth on Part 2.13 of the date of this AgreementCompany Disclosure Schedule, none of neither the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, under any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsdamages. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No To the Knowledge of the Company, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, renegotiating any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, or (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesarrangement;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $150,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesCompany; or
(xiiixii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its SubsidiariesCompany, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its SubsidiariesCompany, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this AgreementThe Company has not, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, of or Laws applicable to, to any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (for purposes of this provision, assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions provision or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions provision applicable to the Company or any of its SubsidiariesCompany;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(vii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 300,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Company Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesCompany; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its SubsidiariesCompany, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment Company Contract of more than $200,000 300,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 300,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeCompany.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its SubsidiariesThe Company has not, nor, to the Company’s Knowledge, has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this AgreementCompany, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of the Company or any of to conduct its Subsidiariesbusiness;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $250,000, other than Company Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any Company, in each case, having an outstanding principal in an amount in excess of its Subsidiaries$250,000.;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental BodyBody (other than clinical trial agreements for clinical trial studies);
(xix) each Company Out-bound License and Company In-bound License;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries;
(xii) each Company Contract, offer letter, employment agreement, or independent contractor agreement with any employee, consultant or independent contractor that (A) is not terminable by the Company without less than 60 days notice, severance, or other cost or liability, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event); or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Samples: Merger Agreement (GTX Inc /De/)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (and, except with respect to clauses (m) and (n) below, other than any Company Parent Benefit Plans) (each, a “Company "Parent Material Contract” " and collectively, the “Company "Parent Material Contracts”"):
(ia) each Parent Contract that would be is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each Parent Contract relating to any agreement the primary purpose of which is indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to another Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the Company ability of Parent or any of its SubsidiariesSubsidiaries to conduct their respective businesses;
(ivd) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms and not cancelable without penalty;
(ve) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $25,000, other than Parent Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(vif) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries, in each case, having an outstanding principal in an amount in excess of $25,000;
(viig) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license or engage any third party to manufacture or produce any productproduct or drug substance, service or technology of the Company Parent, any Contract for raw materials or warehousing of products or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viiih) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company Parent or its Subsidiaries in connection with the Contemplated Transactions;
(ixi) each Company Parent Real Estate Lease;
(xj) each Parent Contract with any Governmental BodyBody (other than clinical trial agreements for clinical trial studies);
(xik) each Company Parent Out-bound License and Company Parent In-bound License;
(xiil) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or its Subsidiaries or obligation to pay any royalties, fees or other payments to any owner, licensor, or other claimant to any Intellectual Property Rights, in each case, in excess of $25,000;
(m) each offer letter, employment agreement, or independent contractor agreement with any employee, consultant or independent contractor currently providing services to Parent or its Subsidiaries that (A) is not terminable by Parent or a Subsidiary of Parent without sixty (60) days' or more notice, severance, or other cost or liability, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any payment or benefit that may or will become due as a result of its Subsidiariesthe Merger (whether alone or in connection with any other event);
(n) each Parent Contract that is a collective bargaining agreement or is with a professional employer agency, temporary employment agency or labor contractor; or
(xiiio) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 25,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 25,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company Parent. Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has nor, to Parent's Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business Subsidiaries or operationstheir respective businesses. As to the Company and Parent or its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company Parent or any of its Subsidiaries under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to xxx or otherwise enforce any Intellectual Property Rights;
(xii) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or;
(xiii) each Parent Contract, offer letter, employment agreement, or independent contractor agreement with any employee or service provider whose annual compensation equals or exceeds $125,000 that (A) is not immediately terminable by Parent without notice, severance, or other cost or liability, except as required under applicable Law, or (B) provides for retention payments, change-of-control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of the Merger;
(xiv) any other Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole;
(xv) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License; or
(xvi) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Neither Parent nor any of its Subsidiaries has, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, and no Person has indicated in writing to Parent that it desires to renegotiate, modify, not renew or cancel any Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (other than any Company Parent Benefit Plans) Plans (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract Contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Parent Contract containing (A) any covenant limiting in any material respect the freedom of the Company, Parent or its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than Parent or marketing its Subsidiaries or distribution rights related any similar term by which any Person is or could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than Parent or its Subsidiaries, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into in the Company or any Ordinary Course of its SubsidiariesBusiness;
(iv) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Parent Contract with any Governmental Body;
(xi) each Company Parent Out-bound License and Company Parent In-bound License, and each Parent Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xii) each Parent Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or;
(xiii) each Parent Contract, offer letter, employment agreement, or independent contractor agreement with any employee, independent contractor or other natural person service provider that (A) is not immediately terminable at will by Parent without notice, severance, or other cost or payment, except as required under applicable Law, or (B) provides for retention payments, change-of-control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of the Merger;
(xiv) each Parent Contract with a professional employer organization or staffing agency;
(xv) each Parent Contract that is a collective bargaining agreement or similar agreement with any labor union or similar labor organization;
(xvi) any other Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company Parent or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole;
(xvii) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xviii) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to Parent under a Parent In-bound License.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Parent nor any of its Subsidiaries, nor, to the CompanyParent’s Knowledge, any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent and its Subsidiaries or its business or operationstheir businesses, taken as a whole. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract, and, to the Knowledge of Parent, no Person has indicated in writing to Parent that it desires to renegotiate, modify, not renew or cancel any Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. The following agreements, ------------------------------------- contracts or commitments with respect to which Avanex or one of its subsidiaries is a party or is bound are referred to herein as the "Avanex Contracts":
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Avanex's Board of the date of this Agreement (Directors, other than those that are terminable by Avanex or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Avanex;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesssoftware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Avanex or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Avanex or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of assets in excess of $200,000 250,000 not in the ordinary course of business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Avanex has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Avanex's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing, alliance, development or other agreement currently in force under which Avanex or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service, or any material agreement pursuant to which Avanex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Avanex or any of its subsidiaries;
(g) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Avanex product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Avanex products or service, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Oplink;
(h) any agreement, contract or commitment currently in force to provide source code to any third party, including any escrow agent, for any product or technology that is material to Avanex and its subsidiaries taken as a whole;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 (i) in connection with or pursuant to which Avanex and its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $250,000 during the current fiscal year or obligations after during the date of this Agreement in excess of $500,000 in the aggregatenext fiscal year, or (Bii) that is a material to the business or operations contract (as defined in Item 601(b)(10) of Regulation S-K of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretoSEC rules). Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither Avanex nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, Avanex's Knowledge any other party to a Company Material ContractAvanex Contract is in material breach, has breached, violated violation or defaulted default under, or and neither Avanex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of, or Laws applicable to, of any Company Material Avanex Contract in such a manner as would permit any other party to cancel or terminate any such Company Material Avanex Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Oplink Communications Inc)
Agreements, Contracts and Commitments. Part 2.9 of the Buyer Disclosure Schedule identifies:
(a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each Buyer Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangement, other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, Buyer Contracts on Buyer’s standard form offer letter entered into in the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) Ordinary Course of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)Business;
(iib) each Buyer Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, not terminable by Buyer or its Subsidiaries on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Buyer’s, Buyer’s Subsidiaries’ or such successor’s ability to terminate employees at will;
(c) each Buyer Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(d) each Buyer Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between Buyer and any of its officers or directors;
(iiie) each Buyer Contract relating to any agreement, contract or commitment containing (A) any covenant limiting the freedom of the CompanyBuyer, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivf) each Buyer Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to its express terms 500,000 and not cancelable without penalty;
(vg) each Buyer Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vih) each Buyer Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $500,000 or creating any material Encumbrances with respect to any assets of the Company Buyer or any of its Subsidiaries Buyer Subsidiary or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesBuyer;
(viii) each Buyer Contract requiring payment by or relating to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ai) any distribution agreement (identifying any that contain exclusivity provisions); (Bii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Buyer (Ciii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Buyer or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Buyer or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Buyer or any of its Subsidiariessuch Buyer Subsidiary; or (Div) any Contract currently in force to license any third party to manufacture or produce any Buyer product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell, distribute or commercialize any Buyer products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into agreements in the Ordinary Course of Business;
(viiij) each Buyer Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Buyer in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiiik) any other Contract that agreement, contract or commitment which is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and Buyer (Ai) which involves payment or receipt by the Company Buyer or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of $500,000 or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (Bii) that is material to the business or operations of the Company Buyer and its Subsidiaries, taken as a whole.
(b) The Company . Buyer has delivered or made available to Parent Lpath accurate and complete (except for applicable redactions thereto) copies of all Company Buyer Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Buyer Material Contracts that are not in written form. As Except as set forth on Part 2.9 of the Buyer Disclosure Schedule, neither Buyer nor any of its Subsidiaries has, nor to Buyer’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, Agreement has any other party to a Company Buyer Material Contract, has breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which Buyer or its Subsidiaries is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, any Company contract or commitment, a “Buyer Material Contract Contract”) in such manner as would permit any other party to cancel or terminate any such Company Buyer Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Buyer Material Adverse Effect. As to the Company and its Subsidiaries, as The consummation of the date Contemplated Transactions shall not (either alone or upon the occurrence of this Agreement, each Company Material Contract is valid, binding, enforceable and additional acts or events) result in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, any material payment or has a right pursuant to the terms of any Company Material Contract to changepayments becoming due from Buyer, any material amount paid Buyer Subsidiary or payable the Surviving Corporation to the Company or any of its Subsidiaries Person under any Company Material Contract or any other material term or provision of any Company Material Buyer Contract.
Appears in 1 contract
Samples: Merger Agreement (Lpath, Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 4.16 of the Company Tellurian Disclosure Schedule lists all Material Contracts of Tellurian. Except as set forth in Section 4.16 of the following Company Contracts in effect Tellurian Disclosure Schedule and as contemplated hereby, Tellurian is not a party to, as of the date hereof, (i) any collective bargaining agreements or any agreements that contain any severance pay liabilities or obligations, (ii) any Employee Benefit Plans, (iii) any employment agreement, contract or commitment with an employee, or agreements to pay severance, (iv) any agreements between or among Tellurian or one of this Agreement its Affiliates or with any Related Person of Tellurian (other than agreements solely between or among Tellurian and its wholly owned Subsidiaries), (v) any Company Benefit Plans) (eachagreement, a “Company Material Contract” indenture or other instrument for borrowed money and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement or other instrument which contains restrictions with respect to payment of indemnification distributions in respect of any outstanding Securities, (vi) any agreement, contract or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Tellurian to engage or compete in any line of business or compete with any PersonPerson or in any geographic area during any period of time, (Bvii) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract commitment relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
50,000, (vviii) each Contract any agreement, contract or commitment relating to the acquisition, disposition or acquisition voting of material assets or capital stock of any ownership interest in any Entity;
(vi) each Contract relating to any mortgagesbusiness enterprise, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or including Tellurian and any of its Subsidiaries, in each case(ix) any contract that requires Tellurian to purchase its total requirements of any product or service from a third party or that contains “take or pay” provisions, except (x) any contract that provides for Contracts entered into in the Ordinary Course indemnification by Tellurian of Business;
(viii) each Contract with any Person or the assumption of any Tax, environmental or other liability of any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and Company In-bound License;
advertising contract to which Tellurian is a party, (xii) each Contract containing except for contracts relating to trade receivables, any royaltycontract relating to indebtedness (including guarantees) of Tellurian, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract contract with any Governmental Authority to which Tellurian is a party, (xiv) any contract to which Tellurian is a party that is not terminable at provides for any joint venture, partnership or similar arrangement by Tellurian, (xv) any tax partnership agreement, (xvi) any agreement that constitutes a joint operating agreement, unit operating agreement, unitization or pooling agreement, participation agreement, exploration agreement, development agreement, partnership agreement, joint venture agreement or similar agreement, (xvii) any agreement that provides for an irrevocable power of attorney that will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries be in effect after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, Closing Date or (Bxviii) any agreement that is material to the business or operations constitutes a lease of the Company and its Subsidiaries, taken as a whole.
(b) The Company real property. Tellurian has delivered or made available to Parent Magellan accurate and complete copies of all Company written Material Contracts, including all amendments thereto. All references to Tellurian in this Section 4.16 shall be deemed to include the Tellurian Subsidiaries.
(b) Except as set forth in Section 2.14(b4.16(b) of the Company Tellurian Disclosure Schedule, there are no Company Material Contracts that are Tellurian has not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, materially breached any of the terms or conditions ofof any Material Contract. There is not, or Laws applicable toto the Knowledge of Tellurian, under any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, any default or event which, with notice or lapse of time or both, would permit constitute a default on the part of any other party to seek damages of the parties thereto, or pursue other legal remedies which would reasonably be expected to be any notice of termination, cancellation or material modification.
(c) Except to the Company or its business or operations. As to extent the Company and its Subsidiariesenforceability thereof may be limited by Creditor Rights, as each of the date Material Contracts (i) constitutes the valid and binding obligation of this AgreementTellurian and constitutes the valid and binding obligation of the other parties thereto, each Company Material Contract (ii) is valid, binding, enforceable and in full force and effecteffect and (iii) immediately after the consummation of the Merger, subject will continue to the Enforceability Exceptions. No Person is renegotiating, or has constitute a right pursuant to the terms valid and binding obligation of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material ContractTellurian.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Company Contract relating to the employment of, or the performance of employment-related services by, any current Company Associate that would be a material contract as defined in Item 601(b)(10) of Regulation Sis not immediately terminable at-K as promulgated under the Securities Act (assuming will by the Company was subject to the public reporting requirements of the Exchange Act)without notice, severance, or other similar cost or liability;
(ii) each Company Contract relating to any agreement the primary purpose of which is indemnification or guaranty not guaranty, except as entered into in the Ordinary Course of Business;
(iii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of Company or any of to conduct its Subsidiariesbusiness;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000;
(vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any Company, in each case, having an outstanding principal amount in excess of its Subsidiaries$100,000;
(vii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; Company, or (D) any Company Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Company Contract with to which the Company is a party or by which any Governmental Body;of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000; or
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its SubsidiariesCompany, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeCompany.
(b) The Company has delivered or made available to Parent PubCo accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of the date of this AgreementThe Company has not, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No As of the date of this Agreement, no Person is renegotiating, or has a right pursuant renegotiating with the Company to the terms of any Company Material Contract to change, change any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Neither Company nor any of its ------------------------------------- subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as MCS's Board of the date of this Agreement (Directors, other than those that are terminable by MCS or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)MCS;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesssoftware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, MCS or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by MCS or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which MCS has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than MCS's subsidiaries;
(vif) each Contract relating any dealer, distributor, joint marketing or development agreement currently in force under which MCS or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which MCS or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by MCS or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to MCS and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any MCS product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any MCS products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to NetIQ;
(i) any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariescredit;
(viij) each Contract requiring payment by or any settlement agreement entered into within five (5) years prior to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesAgreement; or
(xiiik) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess that has a value of $500,000 in 2,000,000 or more individually, other than the aggregate, or (B) that is material to transactions contemplated by the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments theretoLOI. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Neither MCS nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, MCS's knowledge any other party to a Company Material ContractMCS Contract (as defined below), has breachedis in breach, violated violation or defaulted default under, or and neither MCS nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or Laws applicable tocommitments to which MCS or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the MCS Schedules (any such agreement, any Company Material Contract contract or commitment, a "MCS Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material MCS Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Subsections (i) through (vii) of Section 2.14(a4.11(a) of the Company Interpore Disclosure Schedule lists contain a list of the following Company Contracts types of contracts and agreements to which Interpore or any Subsidiary is a party (such contracts, agreements and arrangements as are required to be set forth in effect as Section 4.11(a) of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, Interpore Disclosure Schedule being referred to herein collectively as the “Company "Interpore Material Contracts”"):
(i) each Contract that would be all distributor, manufacturer's representative, broker, franchise, agency and dealer contracts and agreements to which Interpore or any Subsidiary is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)party;
(ii) each Contract relating to all contracts with physicians and any agreement of indemnification or guaranty not entered into in the Ordinary Course of Businessscientific advisory board members;
(iii) each Contract containing all contracts with independent contractors or consultants (or similar arrangements) to which Interpore or any Subsidiary is a party and which: (A) any covenant limiting are reasonably likely to involve consideration of more than $150,000 in the freedom aggregate during the calendar year ended December 31, 1998, or (B) are reasonably likely to involve consideration of more than $150,000 in the aggregate over the remaining term of the Companycontract;
(iv) all contracts and agreements (excluding routine checking account overdraft agreements involving pettx xxxh amounts) under which Interpore or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness or under which Interpore or any Subsidiary has imposed (or may impose) a lien on any of its Subsidiaries assets, whether tangible or intangible, to secure indebtedness;
(v) all contracts and agreements that limit the Surviving Corporation ability of Interpore or any Subsidiary or, after the Effective Time, Interpore or any of its affiliates, to engage compete in any line of business or compete with any Person, (B) person or in any “most-favored nations” pricing provisions geographic area or marketing or distribution rights related to during any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity period of goods or servicestime, or (E) to solicit any material non-solicitation provisions applicable to the Company customer or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entityclient;
(vi) each Contract relating to any mortgages, indentures, loans, notes all contracts and agreements between or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company among Interpore or any Subsidiary, on the one hand, and any affiliate of its Subsidiaries or any loans or debt obligations with officers or directors of Interpore (other than a wholly owned Subsidiary), on the Company or any of its Subsidiaries;other hand; and
(vii) each Contract requiring payment by all other contracts or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and agreements (A) which involves payment or receipt by the Company or are material to Interpore and its Subsidiaries after or the date conduct of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, their respective businesses or (B) that is the absence of which would have an Interpore Material Adverse Effect or (C) which are believed by Interpore to be of unique value to Interpore even though not material to the business or operations of the Company and its Subsidiaries, taken as a wholeInterpore.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth would not, individually or in Section 2.14(bthe aggregate, have an Interpore Material Adverse Effect, each contract referred to in paragraphs (ii) and (vii) above and each other material contract or agreement of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, Interpore or any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies Subsidiary which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.have been
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):is:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivd) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms and not cancelable without penalty;
(ve) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vif) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viig) each Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesParent, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viiih) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixi) each Company Parent Real Estate Lease;
(xj) each Contract with any Governmental Body;
(xik) each Company Parent Out-bound License and Company Parent In-bound License;
(xiil) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent; or
(xiiim) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company Parent. Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, of or Laws applicable to, to any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Tocagen Inc)
Agreements, Contracts and Commitments. The TARGET Disclosure Schedule ------------------------------------- contains a true and complete list of all material contracts, agreements, commitments and other instruments (identified by title, date and parties) (whether oral or written), to which TARGET or its Subsidiaries is a party, including all:
(a) Section 2.14(a) material leases, rental agreements or other contracts or commitments affecting the ownership or leasing of, title to or use of the Company Disclosure Schedule lists the following Company Contracts any interest in effect as real or personal property and all maintenance or service agreements relating to any real or personal property requiring payments in excess of the date of this Agreement (other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)$100,000 per annum;
(iib) each Contract relating to contracts or commitments providing for payments by TARGET or its Subsidiaries in excess of $50,000 per annum based in any manner upon the sales, purchases, receipts, income or profits of TARGET or its Subsidiaries;
(c) any fidelity or surety or completion bond;
(d) any agreement of indemnification or guaranty not entered into issued other than in the Ordinary Course of Business;
(iiie) each Contract containing license agreements;
(Af) any covenant limiting the freedom of the Company, its Subsidiaries employment contracts or the Surviving Corporation to engage in any line of business commitments regarding employees or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company independent contractors requiring annual payments by TARGET or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date Subsidiaries of this Agreement an amount in excess of $200,000 pursuant 50,000; and any other material contracts, plans or commitments providing for any continuing payment of any type or nature, including, without limitation, any severance, termination, parachute, or other payments (whether due to a change in control, termination or otherwise) and bonuses and vested commissions, in each case, requiring payments by TARGET or any of its express terms and not cancelable without penaltySubsidiaries of an amount in excess of $50,000 in any 12-month period;
(vg) each Contract any collective bargaining agreements;
(h) instruments or arrangements evidencing or related to Indebtedness for money borrowed or to be borrowed, whether directly or indirectly, by way of purchase-money obligation, guaranty, subordination, conditional sale, lease- purchase or otherwise;
(i) any agreement relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the Ordinary Course of the Business;
(vij) each Contract relating joint product development agreements with any party other than BUYER;
(k) except as provided in agreements disclosed elsewhere on the TARGET Disclosure Schedule, any written arrangement concerning non-competition;
(l) agreements with any employee, or Plans, the benefits of which are contingent on, or the terms of which are materially altered upon, the occurrence of a transaction of the nature contemplated by this Agreement involving TARGET or its Subsidiaries; and
(m) agreements or Plans the benefits of which will be increased or accelerated by the occurrence of the transactions contemplated by this Agreement.
(n) written arrangements not disclosed on the TARGET Disclosure Schedule pursuant to any mortgagesother provision in this Section 3.13 under which the consequences of a default or termination could have a TARGET Material Adverse Effect; The contracts, indentures, loans, notes or credit agreements, security agreements commitments and other instruments listed or required to be listed on the TARGET Disclosure Schedule are herein referred to as the "Material Contracts." To TARGET's knowledge, all the Material Contracts are valid and binding upon TARGET or the applicable Subsidiary and upon the other agreements parties thereto and are in full force and effect and enforceable in accordance with their terms, except as enforceability may be affected by bankruptcy, insolvency, moratorium or instruments similar laws affecting creditors rights generally and general principles of equity relating to the borrowing availability of money equitable remedies. Neither TARGET nor any of its Subsidiaries is in violation of or extension in default under (nor does there exist any condition which upon the passage of credit time or creating the giving of notice would cause such a violation of or default under) any material Encumbrances with respect Material Contract to any assets of the Company which it is a party or by which it or any of its Subsidiaries properties or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each caseassets is bound, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Personviolations or defaults that could not, including any financial advisor, broker, finder, investment banker individually or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement reasonably be expected to result in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company TARGET Material Contracts, including all amendments theretoAdverse Effect. Except as set forth in Section 2.14(b) of on the Company TARGET Disclosure Schedule, there are no Company Material Contracts material contracts or commitments that are not in written form. As require the performance of the date services or provision of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to products by TARGET at a Company Material Contract, has breached, violated direct cost for each such contract or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would commitment reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as in excess of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject revenue to the Enforceability Exceptions. No Person is renegotiating, or has a right be derived pursuant to the terms of such contract or commitment. Except for terms specifically described on the TARGET Disclosure Schedule, neither TARGET nor any Company Material Contract Subsidiary has received any payment from any contracting party in connection with or as an inducement for entering into any contract, agreement, policy or instrument except for payment for actual services rendered or to change, any material amount paid be rendered by TARGET or payable to the Company or any of its Subsidiaries under any Company Material Contract consistent with amounts historically charged for such services. The TARGET Disclosure Schedule also sets forth the amount of client payments to TARGET or any other material term its Subsidiaries through the date hereof with respect to services not yet performed by TARGET or provision its Subsidiaries, which payments individually exceed $1,000,000. All such payments through the date of any Company Material Contractthe Latest Financial Statements are reflected in the Latest Financial Statements.
Appears in 1 contract
Samples: Merger Agreement (Thermatrix Inc)
Agreements, Contracts and Commitments. (a) Except as set forth in Section 2.14(a2.11(a) of the Company Disclosure Schedule lists Schedule, and except for any of the following for which neither the Company Contracts in effect or any subsidiary has any further liability or benefit owed by the counterparty, as of the date of this Agreement (other than any Agreement, each of the Company Benefit Plans) (each, and its subsidiaries is not a “Company Material Contract” and collectively, the “Company Material Contracts”):party to nor is it bound by:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);any collective bargaining agreements,
(ii) each Contract relating to any agreements or arrangements that contain any severance pay, post-employment liabilities or obligations or "golden parachute" provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having annual lease payments individually in excess of $25,000,
(viii) any agreement of indemnification indemnification, warranty or guaranty not other than any such agreement entered into in the Ordinary Course ordinary course of Business;business or other than such indemnification, warranty or guaranty agreement which are substantially similar in nature to those provided in the ordinary course of business,
(iiiix) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or to compete with any Person, person,
(Bx) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv) each Contract commitment relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty;50,000,
(vxi) each Contract any agreement, contract or commitment relating to the disposition or acquisition of material assets or any ownership interest in any Entity;business enterprise outside the ordinary course of the Company's business or any subsidiary's business,
(vixii) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement other than sales on credit in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisionsordinary course); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or,
(xiii) any distribution, joint marketing or product development agreement,
(xiv) other Contract that is not terminable at will (with no penalty than outstanding purchase orders issued or payment) accepted by the Company or its Subsidiariessubsidiaries in the ordinary course of business, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment with (A) any customer which, during the last two fiscal years of the Company, accounted, or is expected to account during the Company's current fiscal year, for more than $200,000 in 10% of the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregateCompany's revenue, or (B) any vendor listed in Schedule 2.12, or
(xv) any other agreement, contract or commitment that requires or would reasonably be expected to require payment of $50,000 or more or is material to the business or operations of the Company and its Subsidiaries, taken as a wholenot cancelable without penalty within thirty (30) days.
(b) The Company has delivered Except for any alleged breaches, violations and defaults, and events that would constitute a breach, violation or made available to Parent accurate and complete copies default with the lapse of time, giving of notice, or both, all Company Material Contracts, including all amendments thereto. Except as set forth noted in Section 2.14(b2.11(b) of the Company Disclosure Schedule, there are no neither the Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, subsidiaries has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions ofof any agreement, contract or Laws applicable to, any Company Material Contract commitment set forth in such manner as would permit any other party to cancel Section 2.10 or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to Section 2.11(a) of the Company or its business or operationsDisclosure Schedule (a "Company Contract"). As to the Each Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effecteffect and, except as otherwise disclosed in Section 2.11(b) of the Company Disclosure Schedule, is not subject to any default thereunder of which the Enforceability Exceptions. No Person Company or any subsidiary is renegotiating, or has a right pursuant to the terms of aware by any Company Material Contract to change, any material amount paid or payable party obligated to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractsubsidiary pursuant thereto.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (SCM Microsystems Inc)
Agreements, Contracts and Commitments. Except as otherwise set forth ------------------------------------- in Part 2.14 of the Company Letter, neither Company nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment agreement, contract or commitment with any employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Company's Board of the date of this Agreement (Directors, other than those that are terminable by Company or any Company Benefit Plans) (eachof its subsidiaries on no more than thirty days notice without liability or financial obligation, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject except to the public reporting requirements extent general principles of the Exchange Act)wrongful termination law may limit Company's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification indemnification, any guaranty or guaranty not entered into in the Ordinary Course any instrument evidencing indebtedness for borrowed money by way of Businessdirect loan, sale of debt securities, purchase money obligation, conditional sale, or otherwise;
(iii) each Contract containing (Ad) any covenant limiting the freedom of agreement, obligation or commitment containing covenants purporting to limit or which effectively limit the Company, 's or any of its Subsidiaries or the Surviving Corporation subsidiaries' freedom to engage compete in any line of business or compete with in any Person, geographic area or which would so limit Company or Surviving Corporation or any of its subsidiaries after the Effective Time or granting any exclusive distribution or other exclusive rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the disposition or acquisition by Company or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Company has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;
(vif) each Contract relating to any mortgageslicensing, indenturesdistribution, loansmarketing, notes or credit agreementsreseller, security agreements merchant services, advertising, sponsorship or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariessimilar agreement other than Ordinary Course Agreements;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Ag) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 currently in the aggregateforce to provide source code to any third party for any product or technology; or
(h) (i) any other agreement, contract or obligations after the date of this Agreement commitment currently in excess of $500,000 in the aggregate, or (B) effect that is material to Company's business as presently conducted and proposed to be conducted entered into since the business filing of Company's Quarterly Report on Form 10-Q for the Fiscal Quarter ending March 31, 1999, or operations of (ii) any amendment or modification to any agreement, contract or commitment required to be publicly filed by Company pursuant to the Company and its Subsidiaries, taken Exchange Act which has not been so filed as a whole.
(b) The result of such amendment or modification having been entered into subsequent to the filing of such Form 10-Q. Neither Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, nor any of its Subsidiariessubsidiaries, nor, nor to the Company’s Knowledge, 's knowledge any other party to a Company Material ContractContract (as defined below), has breachedis in breach, violated violation or defaulted default under, or and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Letter pursuant to clauses (a) through (h) above, pursuant to Section 2.9 hereof, or Laws applicable topursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act (any such agreement, any contract or commitment, a "Company Material Contract Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 1 contract
Samples: Merger Agreement (Imall Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 5.20 of the Company Companies Disclosure Schedule lists the following Company Contracts in effect Schedules sets forth, as of the date of this Agreement (other than any Company Benefit Plans) (eachhereof, a “Company Material Contract” complete and collectivelyaccurate list of all of the following Contracts to which the Companies or any of their Subsidiaries are a party or otherwise bound (together with the Real Property Leases, the “Company Material Contracts”):), specifying the parties thereto:
(i) each Contract any engagement letter with clients entered into since the Reference Date that would reasonably be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act expected to result (assuming the Company was subject such engagement is successfully carried out) in payment or consideration to the public reporting requirements Companies or any of the Exchange Act)their Subsidiaries in excess of $100,000;
(ii) each any Contract relating (other than engagement letters) for the provision of services by the Companies or any of their Subsidiaries to any agreement clients involving aggregate payments or consideration in excess of indemnification or guaranty not entered into in the Ordinary Course of Business$25,000;
(iii) each any Contract containing (A) under which the Companies or any covenant limiting the freedom of the Company, its their Subsidiaries would incur any change-in-control payment or the Surviving Corporation similar compensation obligation to engage in any line of business or compete with any Person, (B) including any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryEmployee, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity by reason of goods or services, or (E) any material non-solicitation provisions applicable to the Company or consummation of any of its Subsidiariesthe transactions contemplated by this Agreement;
(iv) each any Contract under which the Companies or any of their Subsidiaries have advanced or loaned any amount to any Person, other than advances to employees relating to capital expenditures expenses and requiring payments after travel, in each case, in the date ordinary course of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penaltybusiness;
(v) each any Contract relating to containing rights or obligations of, or restrictions on, any equityholder in the disposition Companies or acquisition of material assets or any ownership interest their Subsidiaries (in any Entitysuch equityholder’s capacity as such);
(vi) each any Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to under which the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Companies or any of its their Subsidiaries or have continuing material indemnification obligations to any loans or debt obligations with officers or directors Person, other than those entered into in the ordinary course of the Company or any of its Subsidiariesbusiness;
(vii) each any Contract requiring payment by or to the Company or other than a Plan containing a material Restrictive Covenant that binds any of its the Companies or their respective Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisionsother than a confidentiality obligation); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each (A) any Contract under which the Companies or any of their Subsidiaries have created, incurred, assumed, guaranteed or secured Indebtedness (other than Contracts with respect to capitalized or synthetic lease obligations (as determined in accordance with GAAP)) and (B) any Contract with respect to any Person, including any financial advisor, broker, finder, investment banker material capitalized or other Person, providing advisory services to the Company synthetic lease obligations (as determined in connection accordance with the Contemplated TransactionsGAAP);
(ix) any Contract relating to outstanding letters of credit or performance bonds or creating any material liability as guarantor, surety, co-signer, endorser, co-maker or indemnitor, in each Company Real Estate Leasecase in respect of the obligation of any third party to make payments or perform services;
(x) each any Contract with relating to the acquisition or disposition on a principal basis by the Companies or any Governmental Bodyof their Subsidiaries of any material business, operations or division (whether by merger, sale of stock, sale of assets or otherwise) to the extent any material unresolved claims or actual or contingent express material obligations or potential liabilities of any party thereunder remain;
(xi) each Company Out-bound License any employment Contract with any professional employee and Company In-bound Licenseany contract with an individual independent contractor with respect to their services whose annual compensation equals or exceeds $25,000 per year;
(xii) each any Contract containing any royalty, dividend or similar arrangement based on pursuant to which the revenues or profits of the Companies license Licensed Company or any of its Subsidiaries; orIntellectual Property;
(xiii) any Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or other similar agreement or arrangement, in each case that is material to the business of the Companies;
(xiv) any Contract relating to the settlement of any material Proceeding or the waiver or release of any material rights or material claims in respect of any material Proceeding, in each case entered into after January 1, 2012;
(xv) any Contract with any Governmental Authority entered into after the Reference Date and any material Contract with any Governmental Authority (other than engagement letters) entered into before the Reference Date; and
(xvi) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company Companies and its their Subsidiaries, taken as a whole.
(b) The Company has delivered Each Material Contract (and any Contract entered into after the date hereof which would have been a Material Contract if it had been entered into prior to the date hereof) is valid and binding upon and enforceable against each of the Companies or made available Subsidiaries party thereto, and to Parent accurate the knowledge of the Companies, each of the other parties thereto (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Legal Requirements affecting creditors’ rights generally or by principles governing the availability of equitable remedies). True, correct and complete copies of all Company Material Contracts, Contracts (including all amendments schedules, exhibits, amendments, supplements, renewals, extensions and guarantees thereto. Except as set forth in Section 2.14(b) of have previously been made available to Purchaser.
(c) Neither the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Companies (or their Subsidiaries, ) nor, to the Company’s KnowledgeCompanies’ knowledge as of the date hereof, any other party to a Company Material Contract, has breached, violated thereto is in material breach of or defaulted in material default under, and no event has occurred which with notice or received notice that it breached, violated lapse of time or defaulted under, any both would become a material breach of or material default of the terms Companies or conditions oftheir Subsidiaries, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to Knowledge of the Company and its Subsidiaries, Companies as of the date of this Agreementhereof, each Company any other party thereto, under, any Material Contract is valid, binding, enforceable and in full force and effect, subject (or any Contract entered into after the date hereof which would have been a Material Contract if it had been entered into prior to the Enforceability Exceptions. No Person is renegotiatingdate hereof), or has a right pursuant and prior to the terms date hereof no party to any Material Contract has given the Companies any written notice of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision claim of any Company Material Contractsuch breach, default or event.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Parent Disclosure Schedule lists the following Company Parent Contracts in effect as of the date of this Agreement (and, except with respect to clauses (xii) and (xiii) below, other than any Company Benefit Plans) (each, a “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Parent Contract containing containing: (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, ; (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, arrangement; (C) any exclusivity provision, ; or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable provision, in each case, except for restrictions that would not materially affect the ability of Parent to the Company or any of conduct its Subsidiariesbusiness;
(iviii) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 75,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $75,000, other than Parent Contracts in which the applicable acquisition or disposition has been consummated and there are no material ongoing obligations;
(viv) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viivi) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 75,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Parent Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company Parent or any of its Subsidiaries or any Parent Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessParent;
(viiivii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other similar Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixviii) each Company Parent Real Estate Lease;
(xix) each Contract with any Governmental BodyBody (other than clinical trial agreements for clinical trial studies, cooperative research and development agreements and confidentiality agreements);
(x) each Parent Out-bound License and Parent In-bound License, and each Parent Contract containing a covenant not to xxx or otherwise enforce any Intellectual Property Rights;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of Parent;
(xii) each (A) Parent Contract, offer letter, employment agreement or other agreement with any employee that (1) is not immediately terminable at will by Parent without advance notice, severance, or other cost or liability, or (2) provides for retention payments, change of control payments, severance, accelerated vesting, or any payment or benefit that may or will become due as a result of the Merger (whether alone or in connection with any other event) and (B) each Parent Contract, independent contractor agreement, or other agreement with any consultant or service provider that (1) is not immediately terminable at will by the Company without more than 30 days’ prior notice, severance, or other cost or liability or (2) provides for retention payments, change of control payments, severance, accelerated vesting or any payment or benefit that may or will become due as a result of its Subsidiariesthe Merger (whether alone or in connection with any other event);
(xiii) each Parent Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Parent IP or material Intellectual Property Right licensed to the Parent under a Parent In-bound License;
(xiv) each Parent Contract entered into in settlement of any legal proceeding or other dispute; or
(xiiixv) any other Parent Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 75,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 75,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeParent.
(b) The Company Parent has delivered or made available to Parent accurate and the Company complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Parent has not, nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” nation or other preferred pricing provisions arrangement in favor of a Person other than the Company or marketing any similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than the Company, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to provision not entered into the Company or any Ordinary Course of its SubsidiariesBusiness;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 150,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Subsidiary or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract, offer letter, employment agreement, or individual independent contractor agreement with any employee, individual independent contractor or other natural person service provider whose annual compensation equals or exceeds $100,000 that (A) is not immediately terminable at will by the Company without notice, severance, retention or other cost or payment, except as required under applicable Law or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of its Subsidiaries; orthe Merger;
(xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xv) any other Company Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice, except as required by applicable law) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As To the Company’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other no party to a Company Material Contract, Contract has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 1 contract
Samples: Merger Agreement (BiomX Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation Entity to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions arrangement or marketing similar term by which any Person is or distribution rights related could become entitled to any products benefit, right or territoryprivilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, except as contemplated hereby;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license with any third party providing any services relating to the manufacture or produce production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessCompany;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, similar Person providing financial advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(xix) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to xxx or otherwise enforce any Intellectual Property Rights;
(xiixi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company;
(xii) each Company Contract, offer letter, or employment agreement, or independent contractor agreement with any employee or service provider whose annual compensation equals or exceeds $125,000 that (A) is not immediately terminable at will by the Company without notice, severance or other cost or payment, except as required under applicable Law, or (B) provides for retention payments, change of control payments, severance, accelerated vesting, or any similar payment or benefit that may or will become due as a result of its Subsidiaries; orthe Merger;
(xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company under a Company In-bound License;
(xiv) each Company Contract entered into in settlement of any Legal Proceeding or other dispute; and
(xv) any other Company Contract that is not terminable at will (with no penalty or paymentpayment or requirement for prior notice) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its SubsidiariesCompany, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, any of its Subsidiaries, Company nor, to the Company’s Knowledge, as of the date of this Agreement any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or cancel any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) the Subscription Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries Company or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Company’s products or services (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement non-solicitation provision;
(iii) each Company Contract (A) pursuant to purchase minimum quantity of goods or serviceswhich any Person granted the Company an exclusive license under any Intellectual Property, or (EB) any material non-solicitation provisions applicable pursuant to which the Company or granted any of its SubsidiariesPerson an exclusive license under any Company IP Rights;
(iv) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(v) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(vii) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 500,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000; or
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicableCompany, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent Magenta accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As of the date of this AgreementThe Company has not, none of the Company, any of its Subsidiaries, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the have a Company or its business or operationsMaterial Adverse Effect. As to the Company and its SubsidiariesCompany, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(aList of Contracts. Part 4.11(a) of the Company Disclosure Schedule lists identifies, in each subpart that corresponds to the following subsection listed below, any Contract entered into up to the date hereof, (x) to which any Acquired Company Contracts in effect as or a Selling Shareholder (with respect to clause (xiii) hereunder) is a party, (y) by which any of the date Acquired Companies or any of this Agreement their assets is or may become bound or under which any Acquired Company has, or may become subject to, any obligation, or (other than z) under which any Acquired Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):has or may acquire any right or interest:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements with one of the Exchange Act)Acquired Company’s customers;
(ii) each Contract relating pursuant to which any agreement of indemnification Acquired Company has been appointed a partner, reseller or guaranty not entered into in the Ordinary Course of Businessdistributor;
(iii) each Contract containing (A) pursuant to which any covenant limiting the freedom of the CompanyAcquired Company has appointed another Person as a partner, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or servicesreseller, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesdistributor;
(iv) each Contract relating to capital expenditures and requiring payments after that is with any Acquired Company’s suppliers by spending during the date last calendar year or the first 3 months of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penaltythe current calendar year;
(v) each Contract relating imposing any restriction on the right or ability of any Acquired Company: (A) to the disposition compete with any other Person; (B) to acquire any product or acquisition of material assets other asset or any ownership interest services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any Entityother manner with any other Person; or (C) to develop or distribute any technology;
(vi) each Contract relating to any mortgagesthat is an Acquired Company Employee Plan or an Acquired Company Employee Agreement, indentures, loans, notes including all indemnification agreements with current or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with former officers or directors of the Company or any of its Subsidiariesdirectors;
(vii) each Contract requiring payment by or relating to the Company acquisition, transfer, use, development, sharing or license of any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: Intellectual Property or Intellectual Property Right, together with (A) any distribution agreement (identifying any the Intellectual Property or Intellectual Property Right that contain exclusivity provisions)is the subject of such Contract; (B) whether the Intellectual Property or Intellectual Property Right is being licensed to or acquired by any agreement involving provision of services Acquired Company, or products with respect licensed to any pre-clinical or clinical development activities of the Company or any of its Subsidiariesacquired by another Person; and (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products product or service of the applicable Acquired Company to which such Intellectual Property or Intellectual Property Right relates (other than (x) Open Source Licenses listed in Part 4.10(i) of the Disclosure Schedule and licenses for any non-customized software that is generally available on standard terms for less than $5,000 per copy, seat or user, as applicable; (y) Contracts identified in Part 4.10 of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of BusinessDisclosure Schedule);
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services relating to the Company in connection with the Contemplated Transactionsacquisition, issuance or transfer of any securities;
(ix) each Company Real Estate Leaserelating to the creation of any Encumbrance with respect to any asset of any Acquired Company;
(x) each Contract with involving or incorporating any guaranty (except for product warranties in the ordinary course of business), any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(xi) creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(xii) Contracts identified or required to be identified in Part 4.10 of the Disclosure Schedule;
(xiii) involving any Related Party;
(xiv) constituting or relating to any (A) prime contract, subcontract, letter contract, purchase order or delivery order executed or submitted to or on behalf of any Governmental Body or any prime contractor or higher-tier subcontractor, or under which any Governmental Body or any such prime contractor or subcontractor otherwise has or may acquire any right or interest, or (B) quotation, bid or proposal submitted to any Governmental Body or any proposed prime contractor or higher-tier subcontractor of any Governmental Body;
(xixv) each Company Out-bound License and Company In-bound Licensethat was entered into outside the ordinary course of business;
(xiixvi) each Contract containing that has a term of more than 30 days and that may not be terminated by any royaltyAcquired Company (without penalty) within 30 days after the delivery of a termination notice by any Acquired Company, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiariesdisregarding employment agreements; orand
(xiiixvii) any other Contract that is not terminable at will (with no penalty contemplates or payment) by the Company or its Subsidiaries, as applicable, and involves: (A) which involves the payment or receipt by the Company delivery of cash or its Subsidiaries after the date of this Agreement under any such agreement, contract other consideration in an amount or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement having a value in excess of $500,000 20,000 in the aggregate, ; or (B) that is material the performance of services having a value in excess of $20,000 in the aggregate. The Contracts in the respective categories described in clauses (i) through (xvii) above are referred to the business or operations of the Company and its Subsidiaries, taken in this Agreement as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company “Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.”
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as As of the date of this Agreement Agreement, neither VFI nor any of its subsidiaries is a party to or is bound by:
(other than a) any Company Benefit Plans) (eachemployment or consulting agreement, a “Company Material Contract” and collectively, the “Company Material Contracts”):
contract or commitment with any (i) each Contract officer or (ii) employee whose annual base compensation exceeds $125,000 or member of VFI's Board of Directors, other than those that would be a material contract as defined in Item 601(b)(10) are terminable by VFI or any of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject its subsidiaries on no more than 30 days notice without liability or financial obligation, except to the public reporting requirements extent general principles of the Exchange Act)wrongful termination law or applicable foreign law may limit VFI's or any of its subsidiaries' ability to terminate employees at will;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty other than: (i) any agreement of indemnification or guaranty not entered into in the Ordinary Course ordinary course of Businessbusiness, (ii) any agreement of indemnification entered into in connection with the sale or lease of hardware products (or in connection with the sale, lease or license of the software related to or incorporated in hardware products) in the ordinary course of business, (iii) any agreement of indemnification entered into in connection with services performed in the ordinary course of business, (iv) any indemnification agreement between VFI or any of its subsidiaries and any of their respective officers, directors or employees; (v) guarantees of obligations of a VFI subsidiary by VFI or another VFI subsidiary in the ordinary course of business, and (vi) any agreement of indemnification entered into in connection with the licensing by VFI of software in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any material respect the freedom right of the Company, VFI or any of its Subsidiaries subsidiaries or the Surviving Corporation subsequent parent or sister companies to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by VFI or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which VFI has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Af) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services joint marketing or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company VFI or any of its Subsidiaries has subsidiaries have continuing material obligations to develop or jointly market any product, technology or serviceservice and which may not be canceled without penalty upon notice of 30 days or less, or any material agreement pursuant to which the Company VFI or any of its Subsidiaries has subsidiaries have continuing material obligations to jointly develop any Intellectual Property Rights intellectual property that will not be owned, in whole or in part, by the Company VFI or any of its Subsidiaries; subsidiaries and which may not be canceled without penalty upon notice of 90 days or less;
(Dg) any Contract agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to VFI and its subsidiaries taken as a whole, except for (i) any agreement, contract or commitment pursuant to which source code is provided for maintenance of the source code or for development of modifications thereto only, and not for distribution of source or object code to third parties, and (ii) any source code escrow agreement entered into in the ordinary course of business that contains provisions relating to the release of source code if VFI and/or any of its subsidiaries ceases to do business or fails to provide appropriate maintenance; or
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or produce reproduce any productVFI Product, service or technology except as a distributor in the normal course of the Company or business. Neither VFI nor any of its Subsidiaries or any Contract subsidiaries, nor to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, VFI's knowledge any other party to a Company Material ContractVFI Contract (as defined below), has breachedis in breach, violated violation or defaulted default under, or received and neither VFI nor any of its subsidiaries has since January 1, 1996 received, to its knowledge, written notice that it has breached, violated or defaulted under, any of the material terms or conditions ofof any material note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or Laws applicable toother instrument to which VFI or any of its subsidiaries is a party or by which it is bound that are exhibits to VFI's SEC Reports, that are required to be disclosed in the VFI Schedules pursuant to clauses (a) through (h) above or pursuant to Section 2.9 hereof or that are otherwise material to VFI (any Company Material Contract such agreement, contract or commitment, a "VFI CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Material VFI Contract, or would permit any other party to seek damages or pursue other legal remedies damages, which would reasonably be expected result, in VFI's reasonable judgment, in a loss of benefits to be material VFI and/or liabilities to the Company VFI in excess of $1 million (for any individual breach, violation or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractdefault).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Verifone Inc)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):is:
(ia) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(iib) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiic) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(ivd) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms and not cancelable without penalty;
(ve) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vif) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viig) each Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesParent, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viiih) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ixi) each Company Parent Real Estate Lease;
(xj) each Contract with any Governmental Body;
(xik) each Company Out-bound License and Company In-bound LicenseContract required to be listed on Section 3.12(c) or Section 3.12(d) of the Parent Disclosure Schedule;
(xiil) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent; or
(xiiim) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 250,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 250,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company Parent. Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received written notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. The following agreements, contracts or commitments with respect to which Avanex or any of its Subsidiaries is a party or is bound are referred to herein as the “Avanex Contracts”:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Avanex’s Board of the date of this Agreement (Directors, other than those that are terminable by Avanex or any Company Benefit Plansof its Subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days’ notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Avanex;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or guaranty not entered into in the Ordinary Course vesting of Businessbenefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(iiic) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Avanex or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or to compete with any Person, person or granting any exclusive distribution rights;
(Bd) any “most-favored nations” pricing provisions agreement, contract or marketing commitment currently in force relating to the disposition or distribution rights related acquisition by Avanex or any of its Subsidiaries after the date of this Agreement of assets in excess of $250,000 not in the ordinary course of business or pursuant to which Avanex has any products material ownership interest in any corporation, partnership, joint venture or territory, other business enterprise other than Avanex’s Subsidiaries;
(Ce) any exclusivity provisiondealer, (D) distributor, joint marketing, alliance, development or other agreement currently in force under which Avanex or any agreement of its Subsidiaries have continuing material obligations to purchase minimum quantity of goods jointly market any product, technology or servicesservice, or (E) any material non-solicitation provisions applicable agreement pursuant to the Company which Avanex or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Avanex or any of its Subsidiaries;
(ivf) each Contract relating any material agreement, contract or commitment currently in force to capital expenditures and requiring payments after license any third party to manufacture or reproduce any Avanex product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Avanex products or service, except agreements with distributors or sales representative in the date normal course of this Agreement in excess of $200,000 pursuant to its express terms and not business cancelable without penaltypenalty upon notice of ninety (90) days or less and substantially in the form previously provided to each of Parent and Corning;
(vg) each Contract relating any agreement, contract or commitment currently in force to the disposition provide source code to any third party, including any escrow agent, for any product or acquisition of technology that is material assets or any ownership interest in any Entityto Avanex and its Subsidiaries taken as a whole;
(vih) each Contract relating to any mortgages, indentures, loansguarantees, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit;
(i) any other agreement, contract or creating any material Encumbrances commitment in connection with respect or pursuant to any assets of the Company or any of which Avanex and its Subsidiaries will spend or any loans receive (or debt obligations with officers are expected to spend or directors of receive), in the Company aggregate, more than $250,000 during the current fiscal year or during the next fiscal year. Neither Avanex nor any of its Subsidiaries;
(vii) each , nor to Avanex’s Knowledge any other party to a Avanex Contract requiring payment by is in material breach, violation or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealerdefault under, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or and neither Avanex nor any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in received written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the material terms or conditions of, or Laws applicable to, of any Company Material Avanex Contract in such a manner as would permit any other party to cancel or terminate any such Company Material Avanex Contract, or would permit any other party to seek material damages or pursue other legal remedies which would reasonably be expected to be material to (for any or all of such breaches, violations or defaults, in the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractaggregate).
Appears in 1 contract
Samples: Share Acquisition and Asset Purchase Agreement (Avanex Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.10(a) of the Company Disclosure Schedule accurately lists all of the following Company Contracts in effect as of the date Company or any of its Subsidiaries (all of the Contracts of the type described in this Agreement (other than any Section 2.10(a), together with all Contracts concerning real property leases set forth in Section 2.8 of the Company Benefit PlansDisclosure Schedule and all Company IP Agreements set forth in Section 2.9(d) (eachof the Company Disclosure Schedule, a “Company Material Contract” and collectively, the being referred to herein as “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject relating to the public reporting requirements of the Exchange Act)any Benefit Plan;
(ii) each Contract relating to the employment of, or the performance of employment-related services by, any Key Employee;
(iii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of BusinessBusiness other than indemnification agreements between the Company or any of its Subsidiaries and any of their respective officers or directors;
(iiiiv) each Contract relating to any agreement, contract or commitment containing (A) any covenant materially limiting the freedom of the Company, Company or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(ivv) each Contract with any Governmental Authority;
(vi) each Contract relating to any agreement, contract or commitment relating to capital expenditures and requiring payments involving obligations after the date of this Agreement in excess of $200,000 pursuant to 100,000 (or its express terms equivalent in EUR) and not cancelable without penalty;
(vvii) each Contract relating to research, development, testing, manufacturing or commercialization of any Company Product Candidate, including any collaboration agreements, clinical trial agreements, consulting agreements, distribution agreements, and supply and manufacturing agreements (but excluding purchase orders);
(viii) each Contract pursuant to which the Company or any of its Subsidiaries (A) is obligated to pay any other Person royalties or development or similar milestone payments with respect to any Company Product Candidate or (B) is obligated to provide to any other Person a percentage interest in the sales or revenues of any Company Product Candidate;
(ix) each Contract pursuant to which any Person (A) is obligated to pay the Company royalties or development or similar milestone payments with respect to any Company Product Candidate or other development program, or (B) is obligated to provide to the Company a percentage interest in the sales or revenues of any Company Product Candidate.
(x) each Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any EntityPerson;
(vixi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 (or its equivalent in EUR) or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other agreement, Contract that is not terminable at will or commitment (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (Ai) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of $100,000 (or its equivalent in EUR) or more than $200,000 in the aggregate, aggregate or obligations after the date of this Agreement in excess of $500,000 100,000 (or its equivalent in EUR) in the aggregate, or (Bii) that is material to the business or operations of the Company and its Subsidiaries; or
(xiii) each Contract, taken as the termination of which would have a wholeCompany Material Adverse Effect.
(b) The Company has delivered or made available to Parent accurate and complete (except for applicable redactions thereto) copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Material Contracts that are not in written form. As Each Company Material Contract is valid and binding on the Company or its Subsidiaries in accordance with its terms and is in full force and effect, except as may be limited by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the date enforcement of this Agreement, none of creditors’ rights generally. Neither the Company, Company or any of its Subsidiaries, Subsidiaries nor, to the Knowledge of the Company’s Knowledge, any other party to a Company Material Contract, Contract has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which that would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, taken as a whole. To the Knowledge of the date Company, no event has occurred, and no circumstance or condition exists, that, with notice or lapse of this Agreementtime or both, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject would reasonably be expected to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms constitute an event of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries default under any Company Material Contract or any result in a termination thereof or would cause or permit the acceleration or other material term or provision changes of any Company Material Contractright or obligation or the loss of any benefit thereunder.
Appears in 1 contract
Samples: Acquisition Agreement (Avalanche Biotechnologies, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 4.13 of the Company Parent Disclosure Schedule lists the following Company Contracts Letter identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Benefit Plans) (each, a an “Company Parent Material Contract” and collectively, the “Company Parent Material Contracts”):
(i) each Parent Contract that would be a relating to any material contract as defined in Item 601(b)(10) of Regulation Sbonus, deferred compensation, severance, incentive compensation, pension, profit-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)sharing or retirement plans, or any other employee benefit plans or arrangements;
(ii) each Parent Contract requiring payments by Parent after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Parent Associate providing employment related, consulting or independent contractor services, not terminable by Parent on thirty (30) calendar days’ or less notice without liability;
(iii) each Parent Contract relating to any agreement or plan, including any option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(iv) each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiv) each Parent Contract containing (A) any covenant limiting the freedom of the Company, Parent or any of its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture or distribution of the Parent’s products or services (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, provision or (D) any agreement non-solicitation provision;
(vi) each Parent Contract (A) pursuant to purchase minimum quantity of goods or serviceswhich any Person granted Parent an exclusive license under any Intellectual Property, or (EB) pursuant to which Parent granted any material non-solicitation provisions applicable to Person an exclusive license under any Parent IP Rights;
(vii) each Parent Contract containing any royalty, dividend or similar arrangement based on the Company revenues or profits of Parent, any of its Subsidiaries, or of a product;
(ivviii) each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(vix) each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $100,000 after the date of this Agreement;
(vix) each Parent Contract entered into in settlement of any Legal Proceeding or other dispute pursuant to which Parent or any of its Subsidiaries has outstanding obligations to pay consideration in excess of $100,000;
(xi) each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(viixii) each Parent Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); , (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; Parent, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company Parent or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; such Subsidiary or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Parent Contracts entered into in the Ordinary Course of Business;
(viiixiii) each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated TransactionsTransactions and requiring payments by Parent after the date in this Agreement in excess of $100,000 pursuant to its express terms;
(ixxiv) each Company Parent Contract to which Parent or any of its Subsidiaries is a party or by which any of their assets and properties is currently bound (other than Parent Real Estate Leases), which involves annual obligations of payment by, or annual payments to, Parent or such Subsidiary in excess of $100,000;
(xv) any Parent Real Estate Lease;
(xxvi) each a Contract with any Governmental Body;
(xidisclosed in or required to be disclosed in Section 4.12(b) each Company Out-bound License and Company In-bound License;
(xiior Section 4.12(c) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent Disclosure Letter; or
(xiiixvii) any other Parent Contract (other than Parent Real Estate Leases) that is not terminable at will (with no penalty or payment) by the Company Parent or any of its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company Parent or its Subsidiaries such Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, aggregate or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, Subsidiaries taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Parent Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit a manner, and, if such Parent Material Contract provides for a cure period, Parent or such other party fails to have cured such breach, violation or default, so that any other party or Parent, as the case may be, is permitted to modify, cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationshave a Parent Material Adverse Effect. As to the Company Parent and its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Pulmatrix, Inc.)
Agreements, Contracts and Commitments. (a) Section 2.14(a) of Except as set forth on Schedule 2.23(a), neither the Company Disclosure Schedule lists the following Company Contracts in effect as nor any of the date of this Agreement (other than any Company Benefit Plans) (eachits subsidiaries has, is a “Company Material Contract” and collectivelyparty to, the “Company Material Contracts”):or is bound by:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)any fidelity or surety bond or completion bond;
(ii) each Contract relating to any lease of personal property having a value individually in excess of $25,000;
(iii) any agreement of indemnification or guaranty not guaranty, other than such indemnification obligations in the software license agreements of the Company and its subsidiaries entered into in the Ordinary Course ordinary course of Businessbusiness consistent with past practices and which indemnification obligations are capped at an amount not to exceed the revenues generated under such agreements;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or to compete with any Personperson, (B) including without limitation, any “most-favored nations” pricing provisions or marketing exclusive license agreements or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesagreements;
(ivv) each Contract any agreement, contract or commitment relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty25,000 individually or $50,000 in the aggregate;
(vvi) each Contract any agreement, contract or commitment relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of business;
(vivii) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect credit, including guaranties referred to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariesin clause (viii) hereof;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Aviii) any distribution agreement purchase order or contract for the purchase of raw materials involving $25,000 or more;
(identifying any that contain exclusivity provisions); (Bix) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; construction contract;
(Cx) any dealer, distributordistribution, joint marketingmarketing or development agreement;
(xi) any agreement, alliance, joint venture, cooperation, collaboration, development contract or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement commitment pursuant to which the Company or any of its Subsidiaries subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole granted or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into may grant in the Ordinary Course of Business;
(viii) each Contract with future, to any Person, including any financial advisor, broker, finder, investment banker party a source-code license or option or other Person, providing advisory services right to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Outuse or acquire source-bound License and Company In-bound License;code; or
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of that involves $25,000 or more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or is not cancelable without penalty within thirty (B30) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholedays.
(b) The Company has delivered Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or made available to Parent accurate and complete copies default with the lapse of time, giving of notice, or both, all Company Material Contractsof which are noted in Schedule 2.23(b), including all amendments thereto. Except as set forth in Section 2.14(b) of neither the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, subsidiaries has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected contract required to be material to the Company set forth on Schedule 2.23(a) or its business or operationsSchedule 2.12. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract Each contract is valid, binding, enforceable and in full force and effecteffect and, except as otherwise disclosed in Schedule 2.23(b), is not subject to any default thereunder of which the Enforceability Exceptions. No Person is renegotiating, or Company has a right pursuant to the terms of knowledge by any Company Material Contract to change, any material amount paid or payable party obligated to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractsubsidiaries pursuant thereto.
Appears in 1 contract
Samples: Merger Agreement (Informatica Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(aExcept as set forth on Part 2.19(a) of the Company Skipping Stone Disclosure Schedule lists the following Company Contracts in effect as or pursuant to Section 5.5, neither Skipping Stone nor any of the date of this Agreement (other than any Company Benefit Plans) (eachits subsidiaries has, or is a “Company Material Contract” and collectivelyparty to, the “Company Material Contracts”):or is bound by:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)any fidelity or surety bond or completion bond;
(ii) each Contract relating to any lease of personal property having a value individually in excess of $25,000;
(iii) any agreement of indemnification or guaranty not guaranty, other than such indemnification obligations in the software license agreements of Skipping Stone or its subsidiaries entered into in the Ordinary Course ordinary course of Businessbusiness consistent with its past practice and which indemnification obligations are capped at an amount not to exceed the revenues generated under such agreements;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Skipping Stone to engage in any line of business or to compete with any Personperson, (B) including without limitation, any “most-favored nations” pricing provisions or marketing exclusive license agreements or distribution rights related to any products or territoryagreements, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material except for non-solicitation provisions applicable to the Company disclosure and non-circumvention agreements customary in Skipping Stone's or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penaltyit subsidiaries' business;
(v) each Contract any agreement, contract or commitment relating to capital expenditures involving future payments in excess of $10,000 individually or $25,000 in the aggregate;
(vi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of business;
(vivii) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect credit, including guaranties referred to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
in clause (viiiii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Businesshereof;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker purchase order or other Person, providing advisory services to contract for the Company in connection with the Contemplated Transactionspurchase of raw materials involving $25,000 or more;
(ix) each Company Real Estate Leaseany construction contract;
(x) each Contract with any Governmental Bodydistribution, joint marketing or development agreement;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of pursuant to which Skipping Stone has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code; or
(xii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty on no more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or thirty (B30) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholedays notice.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(bPart 2.19(b) of the Company Skipping Stone Disclosure Schedule sets forth a list of Skipping Stone's top fifteen (15) customers according to revenue for the fiscal year last completed.
(c) Except for such alleged breaches, violations and defaults, and events that would constitute a material breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Part 2.19(c) of the Skipping Stone Disclosure Schedule, there are no Company Material Contracts that are Skipping Stone has not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected contract required to be material to the Company set forth on Parts 2.19(a), 2.19(b) or its business or operations. As to the Company and its Subsidiaries, as 2.11 of the date Skipping Stone Disclosure Schedule. To the knowledge of this AgreementSkipping Stone and the Skipping Stone Stockholders, each Company Material Contract such contract is valid, binding, enforceable and in full force and effecteffect and, except as otherwise disclosed in Part 2.19(c) of the Skipping Stone Disclosure Schedule, is not subject to the Enforceability Exceptions. No Person is renegotiating, or has a right any default thereunder by any party obligated to Skipping Stone pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contractthereto.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as set forth on Section 3.16 to the Disclosure Schedules, neither Target nor any of its subsidiaries is a party to or is bound by:
(a) Section 2.14(a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company Disclosure Schedule lists the following Company Contracts in effect as Target's Board of the date of this Agreement (Directors, other than those that are terminable by Target or any Company Benefit Plansof its subsidiaries on no more than thirty (30) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject days' notice without liability or financial obligation to the public reporting requirements of the Exchange Act)Target;
(iib) each Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any agreement of indemnification or any guaranty not other than any agreement of indemnification entered into in connection with the Ordinary Course sale or license of Businesscomputer or communications hardware products in the ordinary course of business;
(iiid) each Contract any agreement, contract or commitment containing (A) any covenant limiting in any respect the freedom right of the Company, Target or any of its Subsidiaries or the Surviving Corporation subsidiaries to engage in any line of business, conduct business in any geographical area or to compete with any Person, person or granting any exclusive distribution rights;
(Be) any “most-favored nations” pricing provisions agreement, contract or marketing or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable commitment currently in force relating to the Company disposition or acquisition by Target or any of its Subsidiaries;
(iv) each Contract relating to capital expenditures and requiring payments subsidiaries after the date of this Agreement of a material amount of assets not in excess the ordinary course of $200,000 business or pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of which Target has any material assets or any ownership interest in any Entitycorporation, partnership, joint venture or other business enterprise other than Target's subsidiaries;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiaries;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (Cf) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, marketing or development or other agreement currently in force under which the Company Target or any of its Subsidiaries has subsidiaries have continuing material obligations to develop or jointly market any product, technology or serviceservice and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which the Company Target or any of its Subsidiaries has subsidiaries have continuing material obligations to jointly develop any Intellectual Property Rights intellectual property that will not be owned, in whole or in part, by the Company Target or any of its Subsidiaries; subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(Dg) any Contract agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Target and its subsidiaries taken as a whole;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or produce reproduce any Target product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 currently in force to sell or distribute any Target products, service or technology except agreements with distributors or sales representative in the aggregate, normal course of business cancelable without penalty upon notice of ninety (90) days or obligations after the date of this Agreement in excess of $500,000 less and substantially in the aggregate, or (B) that is material form previously provided to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.Parent;
Appears in 1 contract
Samples: Merger Agreement (Avocent Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract in effect as of the date of this Agreement (that involves payment or receipt by the Company of more than $10,000 in the aggregate, or obligations after the date of this Agreement in excess of $10,000 in the aggregate other than any Company Benefit Plans) (each, a “Company Material Contract” Plans and collectively, the “Company Material Contracts”):includes:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iv) each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 10,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries Parent or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesParent;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries Parent after the date of this Agreement in excess of $200,000 50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesParent; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries Parent has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesParent; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries Parent or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesParent, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent in connection with the Contemplated Transactions;
(ix) each Company Parent Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Out-bound License and Company In-bound LicenseParent IP Agreement;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its SubsidiariesParent; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 25,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 10,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholeParent.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (i)-(xiii) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Parent has not nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or its business or operationsbusiness. As to the Company and its SubsidiariesParent, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Samples: Merger Agreement (BioPharmX Corp)
Agreements, Contracts and Commitments. (a) Section 2.14(a2.13(a) of the Company Disclosure Schedule lists identifies each of the following material Company Contracts in effect as of the date of this Agreement (other than any Company Benefit Plans) Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iiiii) each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iviii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms and not cancelable without penalty;
(viv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(viv) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its SubsidiariesCompany;
(viivi) each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its SubsidiariesCompany; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its SubsidiariesCompany; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its SubsidiariesCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business;
(viiivii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions;
(ixviii) each Company Real Estate Lease;
(xix) each Company Contract with any Governmental Body;
(x) each Company IP Rights Agreement required to be listed on Section 2.12(c) or Section 2.12(d) of the Company Disclosure Schedule;
(xi) each Company Out-bound License and Company In-bound License;
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries;
(xii) (A) any employment, management, service and/or consulting Contract providing for annual compensation in excess of $100,000, and (B) any Contract providing for severance, retention, change in control or other similar payments in excess of $50,000; or
(xiii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 100,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 100,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of Neither the date of this Agreement, none of the Company, Company nor any of its SubsidiariesSubsidiaries has, nor, nor to the Company’s Knowledge, as of the date of this Agreement has any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operationsbusiness. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) 3.13 of the Company Parent Disclosure Schedule lists the following Company Contracts identifies each Parent Contract that is in effect as of the date of this Agreement (other than any Company Parent Benefit PlansPlan) (each, a “Company Material Contract” and collectively, the “Company Material Contracts”):and:
(i) each Contract that would be is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii) each Contract relating to any is an agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii) each Contract containing contains (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Parent to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related to any products or territoryarrangement, (C) any exclusivity provision, or (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesprovision;
(iv) each Contract relating relates to capital expenditures and requiring payments after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms and not cancelable without penalty;
(v) each Contract relating relates to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi) each Contract relating relates to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company Parent or any of its Subsidiaries;
(vii) each Contract requiring requires payment by or to the Company Parent or any of its Subsidiaries after the date of this Agreement in excess of $200,000 25,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company Parent or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration, development or other agreement currently in force under which the Company Parent or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries Parent has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company Parent or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company Parent or any of its Subsidiaries or TABLE OF CONTENTS any Contract to sell, distribute or commercialize any products or service of the Company Parent or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii) each Contract is with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company Parent or its Subsidiaries in connection with the Contemplated Transactions;
(ix) each Company is a Parent Real Estate Lease;
(x) each is a Contract with any Governmental Body;
(xi) each Company is a Parent Out-bound License and Company or Parent In-bound License;
(xii) each any Parent Investor Agreement;
(xiii) is a Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company Parent or any of its Subsidiaries; or
(xiiixiv) is any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, Parent and (A) which involves payment or receipt by the Company or its Subsidiaries Parent after the date of this Agreement under any such agreement, contract or commitment of more than $200,000 25,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 25,000 in the aggregate, or (B) that is material to the business or operations of the Company Parent and its Subsidiaries, taken as a whole.
(b) The Company Parent has delivered or made available to Parent the Company accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.14(b) Contracts to which Parent or its Subsidiaries is a party or by which it is bound of the Company Disclosure Scheduletype described in the foregoing clauses (a)-(m) (any such Contract, there a “Parent Material Contract”). There are no Company Parent Material Contracts that are not in written form. As Neither the Parent nor any of its Subsidiaries nor, to Parent’s Knowledge, as of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s Knowledge, has any other party to a Company Parent Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Company Parent Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to the Company Parent or any of its Subsidiaries or its business or operationsbusiness. As to the Company Parent and any of its Subsidiaries, as of the date of this Agreement, each Company Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Parent Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries Parent under any Company Parent Material Contract or any other material term or provision of any Company Parent Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.14(a) of Except as set forth on Schedule 2.23(a), neither the Company Disclosure Schedule lists the following Company Contracts in effect as nor any of the date of this Agreement (other than any Company Benefit Plans) (eachits subsidiaries has, is a “Company Material Contract” and collectivelyparty to, the “Company Material Contracts”):or is bound by:
(i) each Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act)any fidelity or surety bond or completion bond;
(ii) each Contract relating to any lease of personal property having a value individually in excess of $25,000;
(iii) any agreement of indemnification or guaranty not guaranty, other than such indemnification obligations in the software license agreements of the Company and its subsidiaries entered into in the Ordinary Course ordinary course of Businessbusiness consistent with past practices and which indemnification obligations are capped at an amount not to exceed the revenues generated under such agreements;
(iiiiv) each Contract any agreement, contract or commitment containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation Company to engage in any line of business or to compete with any Personperson, (B) including without limitation, any “most-favored nations” pricing provisions or marketing exclusive license agreements or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiariesagreements;
(ivv) each Contract any agreement, contract or commitment relating to capital expenditures and requiring involving future payments after the date of this Agreement in excess of $200,000 pursuant to its express terms and not cancelable without penalty10,000 individually or $25,000 in the aggregate;
(vvi) each Contract any agreement, contract or commitment relating to the disposition or acquisition of material assets or any ownership interest in any Entitybusiness enterprise outside the ordinary course of business;
(vivii) each Contract relating to any mortgages, indentures, loans, notes loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect credit, including guaranties referred to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company or any of its Subsidiariesin clause (iii) hereof;
(vii) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $200,000 pursuant to its express terms relating to: (Aviii) any distribution agreement purchase order or contract for the purchase of raw materials involving $25,000 or more;
(identifying any that contain exclusivity provisions); (Bix) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; construction contract;
(Cx) any dealer, distributordistribution, joint marketingmarketing or development agreement;
(xi) any agreement, alliance, joint venture, cooperation, collaboration, development contract or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement commitment pursuant to which the Company or any of its Subsidiaries subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole granted or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into may grant in the Ordinary Course of Business;
(viii) each Contract with future, to any Person, including any financial advisor, broker, finder, investment banker party a source-code license or option or other Person, providing advisory services right to the Company in connection with the Contemplated Transactions;
(ix) each Company Real Estate Lease;
(x) each Contract with any Governmental Body;
(xi) each Company Outuse or acquire source-bound License and Company In-bound License;code; or
(xii) each Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xiii) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of that involves $25,000 or more or is not cancelable without penalty on no more than $200,000 in the aggregate, or obligations after the date of this Agreement in excess of $500,000 in the aggregate, or thirty (B30) that is material to the business or operations of the Company and its Subsidiaries, taken as a wholedays notice.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set Schedule 2.23(b) sets forth in Section 2.14(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. As of the date of this Agreement, none a list of the Company's top 15 customers according to revenue for the fiscal year ended June 30, 2003. Schedule 2.23(b) lists all effective agreements between such customers and the Company.
(c) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.23(c), neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Company Material Contract, subsidiaries has materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected contract required to be material to the Company set forth on Schedule 2.23(a), Schedule 2.23(b) or its business or operationsSchedule 2.12. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract Each such contract is valid, binding, enforceable and in full force and effecteffect and, except as otherwise disclosed in Schedule 2.23(c), is not subject to any default thereunder of which the Enforceability Exceptions. No Person is renegotiating, or Company has a right pursuant to the terms of Knowledge by any Company Material Contract to change, any material amount paid or payable party obligated to the Company or any of its Subsidiaries under subsidiaries pursuant thereto.
(d) Schedule 2.23(d) sets forth all rights of return provided by the Company to any Company Material Contract customer or distributor, and describes any other material term or provision exercise of any Company Material Contractsuch rights during the past 12 months.
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