Company Material Contracts. (a) Section 3.22(a) of the Company Disclosure Letter sets forth a true, correct and complete list, and the Company has made available to Parent true, correct and complete copies, of each Contract, including amendments thereto, to which the Company or any of the Company Subsidiaries is a party or by which it is bound or to which any of their respective assets are subject, as of the date of this Agreement, that:
(i) is a partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development or similar arrangement, or provides for or governs the formation, creation, operation, management or control of such arrangement;
(ii) provides for the creation, incurrence, assumption or guarantee of or otherwise relates to Indebtedness of the Company or any Company Subsidiary, in each case, for borrowed money;
(iii) grants any rights of first refusal, rights of first negotiation, exclusivity or other similar rights or options to any person with respect to the sale of any of the material properties or assets (including material Owned Company Intellectual Property) of the Company or any Company Subsidiary;
(iv) provides for the acquisition or disposition (whether by merger, sale of stock, sale of assets, or otherwise) of any interest in any person or any business or division thereof, or a material portion of the assets of any person, other than this Agreement, (A) entered into since January 1, 2021 and which involves an asset value in excess of $100,000 or (B) pursuant to which any material earn-out, deferred or contingent payment or indemnification obligations remain outstanding;
(v) make any investment in, or loan or capital contribution to, any person (other than the Company or any Company Subsidiary) and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business;
(vi) provides for the settlement of any Proceeding (A) which (x) will involve payment obligations after the date hereof in excess of $50,000 or (y) imposes any continuing material non-monetary obligations on the Company or any Company Subsidiary including any monitoring or reporting obligations to any other person, (B) with respect to which conditions precedent to the settlement have not been satisfied or (C) which materially affects the conduct of the Company’s or any Company Subsidiary’s business;
(vii) contains any provision or coven...
Company Material Contracts. (a) Section 4.11(a) of the Company Disclosure Letter sets forth, as of the date hereof, a true, correct and complete list of each Contract, to which an Acquired Company is a party or is bound as of the date hereof, and which falls within any of the following categories:
(i) any joint venture, limited liability company or partnership agreement, other than any Fund Documentation;
(ii) any Contract, other than Investment Advisory Arrangements, that involves annual future expenditures or receipts by an Acquired Company of more than $1,000,000;
(iii) except with respect to Indebtedness set forth in the Company SEC Documents, any Contract relating to (A) Indebtedness for borrowed money or evidenced by promissory notes or debt securities or (B) any financial guaranty, in each case of clauses (A) and (B) in excess of $1,000,000 individually;
(iv) any Contract relating to an acquisition, divestiture, merger or similar transaction that has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations on an Acquired Company;
(v) any material lease, sublease or other Contract with respect to the Leased Real Property;
(vi) any Contract between or among an Acquired Company, on the one hand, and any directors, executive officers (as such term is defined in the Exchange Act) or any beneficial owner of five percent (5%) or more of the outstanding shares of any class of Company Capital Stock, or any Affiliate of the foregoing, on the other hand;
(vii) any Contract containing any covenant or other provision (A) prohibiting an Acquired Company from engaging in any business with any Person or levying a fine, charge or other payment for doing so; (B) containing and limiting the right of an Acquired Company pursuant to any “most favored nation” or “exclusivity” provisions; (C) limiting the right of an Acquired Company to engage in any material line of business or to compete with any Person in any line of business that is material to an Acquired Company; or (D) that, following the Closing, purports to limit in any respect the right of Parent or any of its Subsidiaries to compete with any Person, to market any product or service or to solicit customers or other Persons; in each case of clauses (A), (B) and (C), other than any such Contracts that (x) may be cancelled without material liability to an Acquired Company upon notice of 90 days or less, or (y) are not material to an Acquired Company;
(viii) any Contract that by its terms limits the payment of ...
Company Material Contracts. (a) Except as set forth in Section 4.17 of the Company Disclosure Letter, as of the Determination Date, neither the Company nor any of its Subsidiaries are parties to or otherwise bound by or subject to (Contracts of the following types, the “Company Material Contracts”):
(i) Contracts (other than any purchase order that specifies price, quantity or delivery terms but does not otherwise vary the terms of any other Contract pursuant to which such purchase order was made in any material respect) for the purchase of products or for the receipt of services from the top twenty (20) suppliers of the Company Entities during the calendar year ended December 31, 2017, determined on a consolidated basis based on the amount of gross purchases made by the Company Entities therefrom;
(ii) Contracts (other than any purchase order that specifies price, quantity or delivery terms but does not otherwise vary the terms of any other Contract pursuant to which such purchase order was made in any material respect) for the furnishing of products or services by the Company Entities to the top twenty (20) customers of the Company Entities during the calendar year ended December 31, 2017, determined on a consolidated basis based on the amount of net merchandise sales (gross merchandise sales less merchandise credit memos and merchandise discounts and rebates) made by the Company Entities thereto;
(iii) Contracts concerning the establishment or operation of a material partnership, joint venture or limited liability company (other than any such Contract between the Company or any of its Subsidiaries and another Subsidiary of the Company);
(iv) Contracts relating to the acquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or otherwise) with material obligations (other than in respect of fraud) extending beyond the Determination Date;
(v) Contracts containing (A) a covenant materially restricting the ability of the Company or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers, (B) a provision granting the other party exclusivity or similar rights or (C) a provision that requires the purchase of all or a material portion of any Company Entities’ requirements for a given product or service from a given third party and which Contract is not terminable by any Company Entity within one year of the Determination Date without any required...
Company Material Contracts. All of the material contracts of the Company and its Subsidiaries that are required to be described in the Company SEC Reports or to be filed as exhibits thereto pursuant to Item 601 of Regulation S-K promulgated by the SEC (the “601 Contracts”) are described in the Company SEC Reports or filed as exhibits thereto. All Company Material Contracts (as defined below) are in full force and effect. True and complete copies of the Company Material Contracts have been made available by the Company to Parent. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Responsible Executive Officers of the Company, any other party, is in breach of or in default under the Company Material Contracts, except for such breaches and defaults as individually or in the aggregate have not had and would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries is party to any agreement containing any provision or covenant limiting, in any material respect, the ability of the Company or any of its Subsidiaries to (a) sell any products or services of or to any other Person, (b) engage in any line of business, or (c) compete with or obtain products or services from any Person or limiting the ability of any Person to provide products or services to the Company or any of its Subsidiaries. As used in this Agreement, the term “Company Material Contract” shall include all of the following types of agreements to which the Company is a party or by which it is bound: (i) 601 Contracts; (ii) contracts involving expected receipts or expenditures in excess of One Hundred Thousand Dollars ($100,000); (iii) contracts granting any exclusive rights to any party; (iv) contracts evidencing indebtedness for borrowed or loaned money of One Hundred Thousand Dollars ($100,000) or more, including guarantees of such indebtedness; (v) contracts involving the in licensing of technology which is included in the Company’s products; (vi) contracts licensing the Company’s products (other than standard form license agreements entered into by the Company in the ordinary course of business that do not individually involve a royalty payment obligation of at least One Hundred Thousand Dollars ($100,000) in the aggregate); (vii) contracts involving the joint development of any product or the joint exploitation of intellectual property by the Company with a third party; and (viii) contracts or subcontracts pursuant to which the Company i...
Company Material Contracts. (a) Other than as set forth in the exhibits to the Company SEC Reports filed with the SEC and publicly available prior to the date of this Agreement, Section 4.19(a) of the Company Disclosure Letter sets forth a true and complete list of all Company Material Contracts as of the date hereof. A true and complete copy of each Company Material Contract, as of the date of this Agreement, has been made available by the Company to Parent prior to the date of this Agreement. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable on the Company and each Company Subsidiary that is a party thereto, and, to the Company’s Knowledge, on each other Person party thereto, and is in full force and effect except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law).
(b) Neither the Company nor any Company Subsidiary is, and, to the Company’s Knowledge, no other party to a 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 violation of or default under) any Company Material Contract to which it is a party or by which any of its properties or assets is bound, except for violations or defaults that, individually or in the aggregate, have not had and would not reasonably be expected to have, a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received written, or to the Company’s Knowledge, oral notice of any material violation of, or material default under, any Company Material Contract.
Company Material Contracts. The Company has filed or furnished to the SEC, or provided to CIG and NBCU prior to the date hereof, true and complete copies of all Company Material Contracts. All Company Material Contracts are valid and in full force and effect and enforceable in accordance with their respective terms, with respect to the Company or its Subsidiaries, as applicable, and, to the knowledge of the Company, with respect to the other parties thereto, except to the extent that (i) they have previously expired or otherwise terminated in accordance with their terms or (ii) the failure to be in full force and effect would not, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any counterparty to any Company Material Contract, has violated any provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a default under the provisions of any Company Material Contract, except in each case for those violations or defaults which are not continuing or, individually or in the aggregate, would not have a Material Adverse Effect. No Company Material Contract has been amended or modified prior to the date of this Agreement (other than immaterial amendments or modifications), except for amendments or modifications which have been filed or furnished as an exhibit to a subsequently filed or furnished SEC Report, or provided to CIG and NBCU prior to the date hereof. The consummation of the Transaction will not result in any Company Material Contract failing to continue in full force and effect or result in any material penalty or other material adverse consequence under a Company Material Contract.
Company Material Contracts. Section 5.1(r) of the Company Disclosure Letter lists any Contract (other than a Contract filed as an exhibit to the Company Reports) (i) that would be required to be filed by the Company or any Filing Subsidiary as a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K of the Securities Act), except for any such Contract that is a Benefit Plan, (ii) that imposes any material restriction on the right of the Company or any of its Subsidiaries to compete with any other Person or to engage or compete in any line of business or in any geographic area, or (iii) that, by its terms, (A) involves potential payments or obligations by or to the Company or any of its Subsidiaries in excess of (x) $10,000,000, in the case of the Company and its Subsidiaries other than the Oncor Entities, or (y) $150,000,000, in the case of the Oncor Entities, or (B) involves the grant to the Company or any of its Subsidiaries of any franchise or right to conduct business in any location or geographic area in which the total number of residential retail customers served by Oncor exceeds 50,000 customers or under which material revenues are generated by the Company or its Subsidiaries (each such Contract, including any Contracts entered into after the date hereof, which, if entered into prior to the date hereof, would have been required to be so listed, a “Company Material Contract”); provided, however, that the Company Material Contracts shall not be deemed to include any Contracts (I) if the rights and interests thereunder are to be contributed to Reorganized TCEH pursuant to the Plan of Reorganization and the Company and its Subsidiaries will not have any obligation or liability in respect thereof after the Closing or (II) that are to be fully and unconditionally terminated, discharged or rejected pursuant to the Plan of Reorganization. Except as has not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, (x) each Company Material Contract is in full force and effect unless terminated in accordance with its terms (assuming the due execution, authorization, and delivery by each other party thereto), (y) other than as a result of the filing of the Chapter 11 Cases, the Company and its Subsidiaries are not in breach of, or default under, the terms of such Company Material Contract and, to the Knowledge of the Company, no other party to a Company Material Contract is in breach of, or default under, the terms of such Co...
Company Material Contracts. (a) Section 3.12(a) of the Company Disclosure Schedules sets forth a true, correct and complete list of the following Contracts to which the Company, as of the date of this Agreement, is a party, other than any Company Benefit Plan set forth on Section 3.16(a) of the Company Disclosure Schedules (“Company Material Contracts”):
(i) any unitholder, partnership, investors’ rights, voting, right of first refusal and co-sale, or registration rights agreement, or other Contract with a holder of Equity Interests of the Company relating to its ownership of such equity securities;
(ii) any non-competition Contract or other Contract that purports to limit (A) the ability of the Company from operating or doing business in any location, market or line of business, (B) the Persons to whom the Company may sell products or deliver services or (C) the Persons that the Company may hire or solicit for hire;
(iii) any employment or consulting Contract with any current or former employee (to the extent of any ongoing liability) or individual service provider of the Company that (A) provides annual base salary or annual fees in excess of $250,000 or (B) is not terminable at-will and without any liability to the Company (other than standard employee confidentiality or non-disclosure agreements) or that cannot be terminated without the payment of severance or similar separation payments (except to the extent required by applicable Law);
(iv) change in control, transaction bonus, retention bonus, stay and pay or similar agreements with any current or former (to the extent of any ongoing liability) employee or individual service provider of the Company;
(v) any Contract under which it is a licensee of or is otherwise granted by a third party any rights to use any Intellectual Property (other than non-exclusive end user licenses of commercially available Software or Software as a service with annual fees of less than $150,000, confidentiality or non-disclosure agreements and non-exclusive licenses to background Intellectual Property granted by consultants or contractors);
(vi) any Contract under which it is a licensor or otherwise grants to a third party any rights to use any Intellectual Property, other than Intellectual Property licensed to customers on a non-exclusive basis;
(vii) any Contract for the development of Intellectual Property by a third party for the benefit of the Company (other than agreements entered into with employees, contractors or consultants on the Company’s...
Company Material Contracts. (a) All Contracts required to be filed as exhibits to the Company SEC Documents have been so filed in a timely manner.
(b) Each of the Company Material Contracts is valid, binding and in full force and effect and is enforceable by the Company or the applicable Company Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought and except for such failures to be valid, binding and in full force and effect or enforceable that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have an Company Material Adverse Effect, the Company, or the applicable Company Subsidiary, has performed all obligations required to be performed by it under the Company Material Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default thereunder and, to the Knowledge of the Company, no other party to any Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have an Company Material Adverse Effect, since January 1, 2013, neither the Company nor any of the Company Subsidiaries has received written notice of any actual, alleged, possible or potential violation of, or failure to comply with, any material term or requirement of any Company Material Contract.
Company Material Contracts. (a) Except as set forth on Schedule 3.6(a) (all Contracts listed on Schedule 3.6(a) together with any other Contracts entered into in the ordinary course of business involving payments or receipts in excess of $3,000,000, collectively, the “Company Material Contracts”) and except for this Agreement and except for any Company Material Real Property Lease, none of the members of the Company Group is a party to or bound by, nor are any of their respective properties or assets bound by, any:
(i) Contract that provides non-compete arrangements with any individual or employee;
(ii) Contract under which any member of the Company Group is a lessee of or holds or operates any tangible property (other than real property), owned by any other Person, except for any Contract under which the aggregate annual rental payments do not exceed $3,000,000;
(iii) Contract under which any member of the Company Group is a lessor of or permits any third party to hold or operate any tangible property (other than real property), owned or controlled by any member of the Company Group, except for any Contract under which the annual rental payments do not exceed $3,000,000;
(iv) partnership agreements and joint venture agreements relating to any member of the Company Group;
(v) Contract of indemnification or guaranty of any obligation for borrowed money or other material guaranty of any Person, including between any member of the Company Group and any of their respective officers, directors or employees, in each case, other than any such agreements or guarantees that are entered into in the ordinary course of business;
(vi) Contract prohibiting any member of the Company Group from freely engaging in any material business, including restrictions on any member of the Company Group’s ability to compete;
(vii) collective bargaining agreement;
(viii) Contract or group of related Contracts with the same party for the purchase of product, services, marketing or advertising, involving payments in excess of $3,000,000, except for agreements entered into in the ordinary course of business;
(ix) Contract or group of related Contracts with the same party for the sale of products, services, marketing or advertising, under which the undelivered balance of such products or services has a sales price in excess of $3,000,000, except for agreements entered into in the ordinary course of business;
(x) Contract evidencing or relating to any obligations of any member of the Company Group with respect to th...
