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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area; (viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services); (ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts; (x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts; (xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts; (xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products; (xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more; (xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”); (xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability; (xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate; (A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement; (xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities; (xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary); (xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months; (xxi) contains any provision allowing a “major antenna product distributor” to return product; (xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or (xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice. (b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contracts.
Appears in 4 contracts
Samples: Merger Agreement (Pc Tel Inc), Merger Agreement (Pc Tel Inc), Merger Agreement (Pc Tel Inc)
Company Material Contracts. (a) Except for this Agreement, all Contracts required to be filed as exhibits to the Company SEC Documents have been so filed in a timely manner. Section 3.22(a3.17(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 subjectSchedules lists, as of the date of this Agreement, that:the following types of Contracts (excluding any Plans) to which the Company is a party and that have not expired or been terminated (such Contracts as are required to be set forth in Section 3.17(a) of the Company Disclosure Schedules, the “Company Material Contracts”):
(i) is a partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development each Contract requiring payment by or similar arrangement, or provides for or governs to the formation, creation, operation, management or control Company after the date of such arrangementthis Agreement;
(ii) provides for all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting, advertising and customer contracts and agreements to which the creation, incurrence, assumption or guarantee of or otherwise relates Company is a party that are material to Indebtedness the business of the Company or any Company Subsidiary, in each case, for borrowed moneyCompany;
(iii) grants any rights of first refusal, rights of first negotiation, exclusivity all (A) employment or other similar rights or options to any person executive officer contracts and (B) contracts 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 Subsidiaryconsultants and independent contractors;
(iv) provides for any staffing agreement or any similar agreement whereby the acquisition or disposition (whether by merger, sale of stock, sale of assets, or otherwise) Company retains the services of any interest in any person staffing agency or professional employer organization (or any business individual engaged through such staffing agency 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 outstandingprofessional employer organization);
(v) make all contracts and agreements under which any investment incurrent or former officer, director, employee, consultant, independent contractor, or loan temporary employee will or capital contribution tocould become entitled to receive a change in control, severance, or other similar payment or benefit or acceleration thereof as a result of the Closing;
(vi) all contracts and agreements with any person union, works council or labor organization;
(vii) all contracts and agreements relating to indebtedness, the borrowing of money or other than similar obligation for or relating to the Company lending or borrowing of money, including any Company Subsidiary) notes, mortgages, indentures and other obligations or guarantees of performance, other than (iA) extensions of credit advances or reimbursements to directors, managers, officers or employees for expenses in the ordinary course of business consistent or (B) transactions with past practice and (ii) investments in marketable securities customers on credit entered into in the ordinary course of business;
(viviii) provides for all contracts and agreements granting any person a Lien on all or any part of the settlement tangible assets or properties of the Company, other than Liens which will be released at or prior to the Closing and Permitted Liens;
(ix) all contracts and agreements that contain any Proceeding (A) which “most-favored nation” pricing or similar pricing terms or provisions regarding minimum volumes, right of first refusal, right of first offer provisions or similar preferential rights in favor of a party other than the Company, or otherwise contemplate an exclusive relationship between the Company and any other person;
(x) will involve payment obligations after the date hereof in excess of $50,000 all partnership, joint venture or any similar agreements (y) imposes for clarity, other than any continuing material non-monetary obligations on agreements pursuant to which the Company has the ability or any right to co-develop 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 businessProducts);
(viixi) contains all contracts and agreements with any provision Governmental Authority to which the Company is a party, other than any Company Permits or covenant agreements relating to or in connection with any clinical trials;
(Axii) limiting in any material respect all contracts and agreements that expressly limit the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or entity or in any geographic areaarea or during any period of time, excluding non-solicitation provisions entered into in the Ordinary Course of Business and customary confidentiality agreements and agreements that contain customary confidentiality clauses;
(viiixiii) involves sole-source all contracts or single-source suppliers arrangements that result in any person or entity holding a power of material tangible products attorney from the Company that authorizes such person or services (including any entity to take action on behalf of the Company’s products Company or servicesits business, other than powers of attorney granted to service providers in the Ordinary Course of Business to perform administrative functions on behalf of the Company or its business (e.g., for patent filings or customs purposes);
(ixxiv) all Leases and leases, master leases, or agreements under which the Company is a license lessee of, or other Contract relating to holds or operates any Intellectual Property Rights granted tangible personal property owned by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contractsparty;
(xxv) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any tangible personal property;
(xvi) except as may be related to the Transactions, all contracts and agreements (other than for purchase or sale of supplies, products or services in the Ordinary Course of Business and material transfer agreements) relating to the sale, disposition, assignment, transfer or acquisition (whether by merger, purchase of stock, purchase of assets or otherwise) of material tangible assets or material properties by the Company (in a license single transaction or a series of related transactions), or any spin-off, merger or business combination with respect to the business of the Company;
(xvii) all contracts and agreements for capital expenditures or the acquisition or construction of fixed assets;
(xviii) all contracts and agreements required to be set forth in the Company Disclosure Schedules pursuant to Section 3.15(a);
(xix) all contracts and agreements in respect of any Action for which there remains any outstanding obligation on the part of the Company, including any such contract with respect to settlements thereof;
(xx) all Related Party Agreements;
(xxi) all contracts and agreements for any charitable or political contributions;
(xxii) all contracts and agreements that compensate the Company based on a percentage of the gross or net revenues or provide for any royalties;
(xxiii) all agreements or instruments guarantying the debts or other Contract relating to obligations of any Intellectual Property Rights person; and
(xxiv) all Contracts (including sales orders) that, individually or in the aggregate, are material to aggregate with all other Contracts (including sales orders) with the Company and the Company Subsidiaries and granted by the Company same counterparty (or any its Affiliates) involves obligations of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for deliver products or services from a given third partyand has not been or will not be, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability as of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lienhereof, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practicealready satisfied.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a legal, valid and binding obligation of, and is in full force and effect with respect to, of the Company and any Company Subsidiary that is a party thereto and, (i) to the knowledge Knowledge of the Company, neither the Company nor the other parties thereto is in material breach or violation of, or material default under, any Company Material Contract nor has any Company Material Contract been canceled by the other party; and (ii) the Company has not received any written, or to the Knowledge of the Company, oral claim of default under any such Company Material Contract, except, in each case, for any such conflicts, violations, breaches, defaults or other party thereto, except for such failure that occurrences which would not have a Company Material Adverse Effect, subject be material to the Bankruptcy and Equity ExceptionCompany, taken as a whole. The Company has made available to Parent true, correct Made Available true and complete copies of all Company Material ContractsContracts in effect as of the date hereof, including amendments thereto that are material in nature. As of the date hereof, to the Knowledge of the Company, except for expirations of Company Material Contracts pursuant to their terms, no counterparty to a Company Material Contract has informed the Company that it desires to terminate or materially alter its relationship with the Company. There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under any Company Material Contract with any Person and no such Person has made demand for such renegotiation.
Appears in 3 contracts
Samples: Merger Agreement (Applied Molecular Transport Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Company Material Contracts. (a) Section 3.22(a) Except for this Agreement, the SMG Transaction Documents, the compensation for the Special Committee approved by resolution of the Company Disclosure Letter sets forth a trueBoard on June 5, correct and complete list2020, and the Company has made available Contracts provided to Parent true, correct and complete copies, of each Contractby the Company in connection with the due diligence related to this Agreement, including amendments thereto, to which the any 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 subjectBenefit Plan, as of the date of this Agreement, thatthe Company is not a party to, bound by or subject to any Contract:
(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 related to any settlement of any Proceeding within the formation, creation, operation, management or control of such arrangementpast three years;
(ii) provides for the creationconstituting a collective bargaining arrangement or with a labor union, incurrencelabor organization, assumption works council or guarantee of similar organization;
(iii) evidencing financial or otherwise relates commodity hedging or similar trading activities, including any interest rate swaps, financial derivatives master agreements or confirmations, or futures account opening agreements and/or brokerage statements or any similar Contract to Indebtedness of which the Company is a party;
(iv) for any Leased Real Property or any Company Subsidiarythe lease of personal property providing, in each case, for borrowed moneyannual payments thereunder of $50,000 or more, individually, or $250,000 or more, in the aggregate;
(iiiv) grants involving the payment or receipt of (x) royalties, licensing fees or advances of more than $50,000 in the aggregate or (y) any rights other amounts of first refusalmore than $25,000 in the aggregate, rights of first negotiationin each case in the 12-month period ending on March 31, exclusivity 2020 and March 31, 2019, or other similar rights reasonably expected to be paid or options to received in the 12-month period ending on March 31, 2021;
(vi) with any person with respect to the sale of any equity holder of the material properties Company;
(vii) between the Company, on the one hand, and any director or assets (including material Owned Company Intellectual Property) officer of the Company or any Company SubsidiaryPerson beneficially owning five percent or more of the outstanding Shares, on the other hand;
(ivviii) 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 relating to Indebtedness 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 Company of $100,000 or (B) pursuant to which any material earn-out, deferred or contingent payment or indemnification obligations remain outstandingmore;
(vix) 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has containing any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation Person or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contractsits affiliates;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted providing for indemnification by the Company of any Person or pursuant to which any indemnification obligations of the Company Subsidiaries to any other person, including any Contracts whereby remain outstanding or otherwise survive as of the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contractsdate of this Agreement;
(xi) that grants any Contract containing covenants limiting the freedom right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental ContractsCompany;
(xii) is a Contract between relating to the acquisition or disposition of any assets or business (whether by merger, purchase or sale of stock, purchase or sale of assets or otherwise) pursuant to which the Company reasonably expects to be required to pay any earn-out, deferred or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company productsother contingent payments;
(xiii) is a Contract that involves performance prohibits the payment of services dividends or delivery distributions in respect of goodsthe capital stock of the Company, materials, supplies or equipment or development, consulting or other services commitments by the pledging of the capital stock of the Company or any Company Subsidiary, or the payment therefor incurrence of Indebtedness by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or moreCompany;
(xiv) is a collective bargaining Contract or Contract with that (1) purports to limit in any labor organization, union or association to material respect either the type of business in which the Company may engage or the manner or locations in which any of them may so engage in any business, (2) could require the disposition of any material assets or line of business of the Company, (3) grants “most favored nation” status or (4) prohibits or limits the right of the Company Subsidiary is a party (eachin any material respect to make, a “CBA”)sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property Rights;
(xv) is an employment agreement that contains a put, call or Contract for similar right pursuant to which the employment Company could be required to purchase or engagement sell, as applicable, any equity interests of any officer, individual employee, consultant Person or other person on assets that have a full time, part time, consulting fair market value or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess purchase price of more than $100,000, ;
(Bxvi) providing for a joint venture, partnership, limited liability company or similar arrangement involving the payment sharing of profits, losses, costs or liabilities with any cash third party;
(xvii) that includes a “change in control” provision or other compensation or benefits upon similar provision that that would be “triggered” by the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting that requires the Company’s (approval or any Company Subsidiary’s) ability to terminate the employment or engagement consent of any employee other party thereto in connection with the consummation of the transactions contemplated by this Agreement or consultant at any time that will terminate or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 result in the aggregate;
(A) has been entered into with a Governmental Entity or, loss of benefits to the knowledge Company thereunder as a result of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurementsuch transactions;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, that would be binding on Parent or any Contract Affiliate of Parent or arrangement relating to effect of the exercise properties, assets or business of Parent or any voting rights in respect Affiliate of any Company Securities;Parent after the Effective Date; or
(xix) any other Contract or group of related Contracts not otherwise described in the foregoing clauses (i) through (xviii) of this Section 5.12(a) that is material to the Company, taken as a whole (together with each Contract constituting any of the foregoing types of Contract described in clauses (i) through (xviii) of this Section 5.12(a) and together with any Contract that has been entered into between or would be required to be filed by the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective as a “associatesmaterial contract” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which Item 601(b)(10) of Regulation S-K under the Company Securities Act or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing disclosed as a “major antenna product distributormaterial contract” on a Current Report on Form 8-K or pursuant to return product;
(xxii) is Item 404 of Regulation S‑K under the Securities Act, the “Company Material Contracts” and, each, a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the “Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practiceMaterial Contract”).
(b) Each Contract required to be listed in Section 3.22(a) A correct and complete copy of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effecthas been made available to Parent. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, on the Company and any Company Subsidiary that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, except for such failure that as would not have a Company Material Adverse EffectEffect or prevent, subject materially delay or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement. Except as, individually or in the aggregate, has not had, and will not have, a Material Adverse Effect and will not prevent, materially delay or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement, there is no breach or event of default under any Material Company Contract by the Company or, to the Bankruptcy Knowledge of the Company, any other party thereto, and Equity Exception. The no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company has made available or, to Parent truethe Knowledge of the Company, correct and complete copies of Company Material Contractsany other party thereto.
Appears in 2 contracts
Samples: Merger Agreement (AeroGrow International, Inc.), Merger Agreement (SMG Growing Media, Inc.)
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 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 personhereof, 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 Subsidiaryas set forth on Schedule 4.09(a) and other than (i) extensions of credit in the ordinary course of business consistent with past practice purchase orders 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers invoices entered into in the ordinary course of business consistent with past practice which are entered into pursuant to one or more master Contracts otherwise disclosed pursuant to this Section 4.09 and which such purchase orders and invoices do not contain the types of provisions described in clause (viii) below, neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) any lease of personal property or intangibles (whether as lessor or lessee) providing for annual rentals of $500,000 or more or aggregate payments by the Company and/or any of its Subsidiaries of $1,000,000 or more;
(ii) any Contract for the purchase or provision of materials, supplies, goods, services, equipment or other assets (x) pursuant to which, during the last twelve (12) months prior to the date hereof, the Company and/or any of its Subsidiaries made aggregate payments of $500,000 or more or (y) providing for future annual aggregate payments by the Company and/or any of its Subsidiaries of $1,000,000 or more;
(iii) any Contract (which may be a master agreement encompassing multiple service addendums or ancillary documents) between the Company or one or more of its Subsidiaries, on the one hand, and a counterparty or one or more of its Affiliates, on the other hand, in each case providing for the sale, distribution, provision and/or licensing, respectively, by the Company and/or its Subsidiaries of materials, supplies, goods, services, equipment or other assets (excluding Intellectual Property Rights), in each case (x) pursuant to which, during the last twelve (12) months prior to the date hereof, the Company and/or any of its Subsidiaries collected aggregate payments of $500,000 or more or (y) which provides for future annual payments to the Company and/or any of its Subsidiaries of $1,000,000 or more with respect to any such counterparty and its Affiliates;
(iv) any limited liability company, partnership, joint venture, collaboration, alliance or other similar agreement or Contract or any Contract involving a sharing of profits, losses, costs or Liabilities with any other Person;
(v) any Contract relating to the acquisition or disposition of any business or material assets (whether by merger, sale of stock (or equivalent), sale of assets or otherwise), in each case other than the sale of goods and services in the ordinary course of business consistent with past practice;
(vi) any Contract (other than a Company Plan) relating to any equity (or securities convertible or exchangeable into equity) or debt investment in or by any Person (other than Options) or any material loan to any Person, other than advances to employees made in the ordinary course of business consistent with past practice;
(vii) any Contract relating to Indebtedness of the Company or any of its Subsidiaries or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset);
(viii) any Contract that (A) materially limits the freedom of the Company or any of its Subsidiaries to compete in any line of business, product or service or with any Person or in any location, or otherwise operate in any location or which purports to be binding on any of the Company’s upstream Affiliates, including, from and after the Merger Closing, Parent and its Affiliates, (B) requires any Group Company to charge certain prices or provide terms of delivery or service-level credits pursuant to a most-favored nation clause, (C) grants any material exclusive rights, rights of first refusal or rights of first negotiation to any Person or (D) subjects any Group Company or any of the Company’s upstream Affiliates, including, from and after the Merger Closing, Parent and its Affiliates, to non-hire or non-solicitation obligations, in the case of this clause (D), other than such obligations contained in customary non-disclosure agreements entered into by any Group Company in the ordinary course of business;
(ix) any Contract pursuant to which (A) the Company or any of its Subsidiaries grants any right or license to material Owned Intellectual Property Rights to any Person (excluding non-exclusive licenses granted to customers and vendors of the Company or any of its Subsidiaries in the ordinary course of business) or (B) the Company or any of its Subsidiaries obtains the right to use any material Intellectual Property Rights (excluding licenses for commercial off the shelf computer software or data services with an annual spend below $250,000);
(x) any settlement, conciliation or similar agreement with any Person pursuant to which any Group Company is obligated to pay an amount in excess of $250,000 or which subjects, or may subject, any Group Company or any of the Company’s upstream Affiliates, including, from and after the Merger Closing, Parent and its Affiliates, to any material restriction or obligation with respect to the conduct of its business;
(xi) any Contract (other than a Company Plan) providing for a capital expenditure or expenditures by the Company or any of its Subsidiaries, individually or in the aggregate, in excess of $500,000;
(xii) any Contract with any Top Customer or Top Supplier;
(xiii) any employment or consulting agreement that provided for compensation exceeding $300,000 for fiscal year ended December 31, 2017 or which includes a promise to provide severance or notice of termination in excess of minimum statutory requirements; and
(xiv) any collective bargaining agreement or other similar Contract with any labor union, labor organization, works council or group of employees (each, a “CBA”).
(b) The Company has made available to the Parent true, complete and correct copies of all Company Material Contracts. Each Contract required to be or group of related Contracts listed of the type described in Section 3.22(a4.09(a) of the Company Disclosure Letter, (whether or not set forth in such section of entered into prior to, on or after the Company Disclosure Letterdate hereof, is referred to in this Agreement as together with all amendments, modifications, supplements, exhibits, annexes and schedules thereto, each, a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a”) is a valid and binding agreement of the Company Disclosure Letter to which such Contract is relevant). Neither or any of its Subsidiaries, as the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contractcase may be, and, to the knowledge of the Company, no event the other parties thereto, and is in full force and effect, subject in each case to the Enforceability Exceptions, except for such failures as, individually or in the aggregate, have not been and would not reasonably be expected to be material to the Company and its Subsidiaries taken as a whole. Except as, individually or in the aggregate, has occurred thatnot been and would not reasonably be expected to be material to the Company and its Subsidiaries taken as a whole, with or without notice, or lapse (i) none of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To its Subsidiaries or, to the knowledge of the Company, no any other party to any Company Material Contract thereto, is in default or breach of or default under the terms of any Company Material Contract where such breach (in each case, with or defaultwithout notice or lapse of time or both), individually or together (ii) the Company and each of its Subsidiaries is in compliance with other such breaches or defaults, would have a Company Material Adverse Effect. Each the terms and requirements of each Company Material Contract to which it is a valid and binding obligation ofparty, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, (iii) to the knowledge of the Company, each other party theretoto such Company Material Contract is in compliance with the terms and requirements of such Company Material Contract. Within the last twelve (12) months prior to the date hereof, except for such failure that as has not been and would not have not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries has received any written notice from any other party to a Company Material Adverse EffectContract regarding any actual or possible violation or breach of, subject or default under or dispute with respect to, any Company Material Contract. Within the last twelve (12) months prior to the Bankruptcy date hereof, except as has not been and Equity Exception. The would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries has made available received any written notice that any counterparty to Parent true, correct and complete copies of a Company Material ContractsContract has terminated, or intends to terminate or amend in a manner adverse to the Company or any of its Subsidiaries, any Company Material Contract. Except as, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries taken as a whole, no event has occurred which, individually or together with other events, would reasonably be expected to result in a breach of or a default under any Company Material Contract by the Company or any Subsidiary of the Company party thereto (in each case, with or without notice or lapse of time or both).
Appears in 2 contracts
Samples: Transaction Agreement (Fortive Corp), Transaction Agreement
Company Material Contracts. (a) Section 3.22(a) of Neither 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 nor any of the Company its Subsidiaries is a party or to any Contract required to be filed by which it is bound or the Company as a “material contract” pursuant to which any Item 601(b)(10) of their respective assets are subjectRegulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Except for this Agreement and except for the Filed Company Contracts, as of the date of this Agreement, thatneither the Company nor any of its Subsidiaries is a party to or bound by:
(i) any Contract for the lease of tangible personal property providing for annual payments of $100,000 or more;
(ii) any Contract that is a reasonably likely to require, during the remaining term of such Contract, either (A) annual payments to or from the Company and its Subsidiaries of more than $750,000 or (B) aggregate payments to or from the Company and its Subsidiaries of more than $750,000;
(iii) any partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development venture or other similar arrangement, agreement or provides for or governs arrangement relating to the formation, creation, operation, management or control of such arrangementany partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries owns more than a 15% voting or economic interest, or any interest valued at more than $750,000 without regard to percentage voting or economic interest;
(iiiv) provides for any Contract (other than solely among direct or indirect wholly owned Subsidiaries of the creation, incurrence, assumption or guarantee of or otherwise relates Company) relating to Indebtedness in excess of $750,000;
(v) any Contract involving the payment or receipt of royalties or other amounts of more than $750,000 in the aggregate calculated based upon the revenues or income of the Company or its Subsidiaries or income or revenues related to any product of the Company or its Subsidiaries;
(vi) any Contract that would reasonably be expected to prevent, materially delay or materially impede the Company’s ability to consummate the Transactions;
(vii) any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for any such Contract that is (A) not material to the Company or any of its Subsidiaries and (B) entered into in the Ordinary Course;
(viii) any Contract that was not negotiated and entered into on an arm’s length basis reasonably likely to result in payments with a value in excess of $500,000 in any 12-month period;
(ix) any non-competition Contract or other Contract that (A) purports to limit in any material respect either the type of business in which the Company or its Subsidiaries (or, after the Gulf Effective Time, Parent or its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (B) could require the disposition of any material assets or line of business of the Company or its Subsidiaries (or, after the Gulf Effective Time, Parent or its Subsidiaries), (C) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and its Subsidiaries and the provisions of which would materially affect the business of the Company and its Subsidiaries (or, after the Gulf Effective Time, Parent or its Subsidiaries) or (D) prohibits or limits the rights of the Company or any Company Subsidiaryof its Subsidiaries (or, in each caseafter the Gulf Effective Time, for borrowed moneyParent or its Subsidiaries) to make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets;
(iiix) grants any rights of first refusalContract pursuant to which (A) any license, rights of first negotiationcovenant not to sxx, exclusivity release, waiver, option or other similar rights right is granted under any material Company Intellectual Property Rights (other than (1) non-exclusive licenses granted to customers or options vendors in the Ordinary Course or (2) licensed implied by or ancillary and incidental to the sale of goods or services); (B) any Person has granted any material license, covenant not to sxx, release, waiver, option or other right under any Intellectual Property Rights to the Company (other than non-exclusive licenses for off-the-shelf commercially available Software that have been granted on standardized, generally available terms and for annual fees of less than $250,000); (C) the Company has assigned or agreed to assign any material Intellectual Property Rights to any person Person; or (D) the Company is subject to any obligation or covenant with respect to the sale use, licensing, enforcement, prosecution or other exploitation of any material Intellectual Property Rights, including stand-stills and Trademark co-existence or consent Contracts (other than (x) non-exclusive licenses for off-the-shelf commercially available Software that have been granted on standardized, generally available terms and for annual fees of less than $250,000 and (y) Contracts otherwise described in this Section 4.18(a)(x));
(xi) any Contract containing a standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of the material properties other party or assets any of its Affiliates and which materially affects the business of the Company and its Subsidiaries;
(including material Owned xii) (A) any Contract between the Company Intellectual Property) or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any Person beneficially owning 5% or more of the outstanding shares of Company SubsidiaryCommon Stock or any of their respective Affiliates, on the other hand, and (B) to the extent not covered by clause (A), any Fxxxxxxx Entity Agreement;
(ivxiii) provides any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests or assets of any Person reasonably likely to result in payments with a value in excess of $750,000 in any 12-month period;
(xiv) any Contract to which the Company or any of its Subsidiaries is a party, or by which any of them are bound, the ultimate contracting party of which is a Governmental Entity (including any subcontract with a prime contractor or other subcontractor who is a party to any such Contract);
(xv) any Contracts with suppliers that provide data or technology to the Company or any of its Subsidiaries (other than non-exclusive licenses or services agreements for off-the-shelf commercially available data or technology that have been granted on standardized, generally available terms and for annual fees of less than $250,000;
(xvi) all management contracts (excluding Contracts for employment) and contracts with other consultants, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or its Subsidiaries or income or revenues related to any product of the Company or any of its Subsidiaries;
(xvii) any Contract entered into at any time prior to the date hereof pursuant to which the Company or its Subsidiaries acquired another operating business for consideration in excess of $5,000,000;
(xviii) any Contract relating to the, direct or indirect, acquisition or disposition of any capital stock or other securities, assets or business (whether by merger, sale of stock, sale of assets, 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, for consideration (A) entered into since January 1, 2021 and which involves an asset value in excess of $100,000 5,000,000 or (B) pursuant that would increase the number of Holdco Common Shares to which any material earn-out, deferred or contingent payment or indemnification obligations remain outstandingbe issued in connection with theTransactions;
(vxix) make any investment inContract that contains a put, or loan or capital contribution tocall, any person (other than the Company or any Company Subsidiary) and other than (i) extensions right of credit in the ordinary course first refusal, right 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” first offer or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement right pursuant to which the Company could be required to, directly or indirectly, purchase or sell, as applicable, any Company Subsidiary has agreed not to acquire any material amount of securities, capital stock or other interests, assets or securities business of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by other Person and which materially restricts the business of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective and its Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viiixx) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single third party or granting any third party the exclusive right to develop, market, sell or distribute the Company’s or its Subsidiaries’ products or services;
(xxi) any collective bargaining agreement or Contract with any union, staff association, works council or other agency or representative body certified or otherwise recognized for the purposes of bargaining collectively; and
(xxii) any market access agreement, agreement to provide sports betting services, gaming revenue share agreement or similar agreement, as set forth on Section 4.18(b)(xxi) of the Company Subsidiaries Disclosure Letter. The foregoing types of Contracts described in clauses (i) – (xx) above, together with any Filed Company Contract, other than those that ishave expired in accordance with their terms, and including all amendments, exhibits and schedules to each such Contract from time to time, shall be referred to herein as a “Company Material Contract”.
(c) A copy of each Company Material Contract has been made available to Parent. Except as would not, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each , each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, on the Company and any Company Subsidiary that is a party thereto or its Subsidiaries, as applicable, and, to the knowledge Knowledge of the Company, each other party thereto, except for such failure that and is in full force and effect. Except as would not not, individually or in the aggregate, have a Company Material Adverse Effect, subject there is no default under any Company Material Contract by the Company or its Subsidiaries, or, to the Bankruptcy Knowledge of the Company, any other party thereto, and Equity Exception. The no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company has made available or its Subsidiaries, or, to Parent truethe Knowledge of the Company, correct and complete copies of Company Material Contractsany other party thereto.
Appears in 2 contracts
Samples: Merger Agreement (DraftKings Inc.), Merger Agreement (Golden Nugget Online Gaming, Inc.)
Company Material Contracts. (a) Section 3.22(a) For purposes of this Agreement, 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, following Contracts to which the Company is a party shall be deemed to constitute “Company Material Contracts”:
(i) each material Contract, ordinance, or other grant of any municipal, town or county franchise of the Company Subsidiaries is a party or (the “Franchises”);
(ii) all Contracts that individually involve expenditures by which it is bound or to which any the Company in excess of their respective assets are subject, as of $20,000,000 in the 12 months preceding 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 all Contracts that individually involve the receipt of payments by the Company in excess of $20,000,000 in the 12 months preceding the date of this Agreement;
(iv) all Contracts for, or relating to, Indebtedness of the Company in excess of $20,000,000;
(v) all Contracts granting to any Person any right or option to purchase or otherwise acquire any assets (other than immaterial assets and immaterial inventory, excluding electricity, in the ordinary course) of the Company (including the Shares), including rights of first option, 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 businesspreferential purchase rights;
(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 personall Contracts that, (B) with respect to which conditions precedent to the settlement have not been satisfied or (C) which materially affects the conduct upon consummation of the Company’s or any Company Subsidiary’s business;
(vii) contains any provision or covenant (A) limiting in any material respect transactions contemplated hereby, would limit the ability of the Company Purchaser or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) its Affiliates to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person Person or in any geographic areaarea or during any period of time (other than limitations that in the aggregate are immaterial);
(vii) all partnership, joint venture and joint ownership Contracts, and all similar material Contracts (however named) of the Company involving a sharing of assets, profits, losses, costs or liabilities with a third party (including, for the purposes of this Section 3.8(a)(vii), any Contract with Seller or any of its Subsidiaries that cannot be terminated without cause); and
(viii) involves soleeach other Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-source or single-source suppliers of material tangible products or services (including any K of the Company’s products or servicesSecurities Act);.
(ixb) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any Section 3.8(a) of the Seller Disclosure Letter sets forth a list of each Company Subsidiaries that isMaterial Contract as of the date hereof, except for such Franchises, the absence of which would not reasonably be expected to have, individually or in the aggregate, material a Company Material Adverse Effect (provided that such Franchises have been made available to Purchaser). Except as set forth in Section 3.8(b) of the Seller Disclosure Letter, Seller has made available to Purchaser true and complete copies of all such Company and the Company Subsidiaries, but excluding Incidental Material Contracts;.
(xc) is a license or other Contract relating Except as would not reasonably be expected to any Intellectual Property Rights thathave, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each , (i) each Company Material Contract is a legal, valid and binding obligation ofof the Company and, to the Knowledge of Seller, each counterparty and is in full force and effect with respect toeffect, subject to the Enforceability Exceptions, and (ii) neither the Company and any Company Subsidiary that is a party thereto andnor, to the knowledge Knowledge of the CompanySeller, each any other party thereto, except for is in breach of, or in default under, any such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material ContractsContract.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gulf Power Co), Stock Purchase Agreement (Nextera Energy Inc)
Company Material Contracts. (a) Section 3.22(a) 3.17 of the Company Disclosure Letter sets forth contains a true, complete and correct and complete list, and as of the Company has made available to Parent true, correct and complete copiesdate hereof, of each ContractContract (other than, including amendments theretofor the avoidance of doubt, Contracts disclosed in Company SEC Documents) described in this Section 3.17(a) under which the Company or any Company Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which the Company or any of the Company Subsidiaries is a party Subsidiary or by which it is bound or to which any of their respective properties or assets are is subject, in each case as of the date hereof (all Contracts of the type described in this AgreementSection 3.17(a), that:whether or not set forth on Section 3.17 of the Company Disclosure Letter, being referred to herein as the “Company Material Contracts”):
(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[reserved];
(ii) provides for any material joint venture, partnership or limited liability company agreement (other than any such agreement solely between or among the creationCompany and its wholly-owned Subsidiaries) or similar Contract;
(iii) each acquisition or divestiture Contract that contains representations, incurrencecovenants, assumption indemnities or guarantee other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by the Company or any Company Subsidiary of future payments in excess of $10,000,000;
(iv) any settlement agreement or otherwise relates to Indebtedness similar Contract restricting in any material respect the operations or conduct of the Company or any Company Subsidiary, in each case, for borrowed moneySubsidiary or any of their respective Affiliates (including Parent and its Affiliates after the Effective Time);
(iiiv) grants each Contract not otherwise described in any rights other subsection of first refusal, rights of first negotiation, exclusivity or other similar rights or options this Section 3.17(a) pursuant to any person with respect to the sale of any of the material properties or assets (including material Owned Company Intellectual Property) of which the Company or any Company Subsidiary;
(iv) provides for the acquisition or disposition (whether by merger, sale of stock, sale of assetsSubsidiary is obligated to pay, or otherwise) of any interest in any person or any business or division thereofentitled to receive, 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 payments in excess of $100,000 or 10,000,000 in the twelve (B) pursuant to which any material earn-out, deferred or contingent payment or indemnification obligations remain outstanding12)-month period following the date hereof;
(vvi) make any investment in, or loan or capital contribution to, Contract not otherwise described in any person (other than subsection of this Section 3.17(a) that obligates the Company or any Company Subsidiary) and other than (i) extensions of credit in Subsidiary to make any future capital investment or capital expenditure outside 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 business10,000,000;
(vii) contains any provision or covenant (A) limiting in any each material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party relating to the license of any Intellectual Property rights and each material Contract granting a license from a third-party for use of geophysical survey data, information, or interpretations, other than (eachA) licenses of commercially-available Software licensed pursuant to a standard license agreement involving aggregate payments of no more than $1,000,000 and (B) non-exclusive licenses of Intellectual Property rights incidental to the sale or purchase of products or services in the ordinary course of business consistent with past practice;
(viii) each Contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, a any Company Subsidiary or any of its Affiliates (including Parent or any of its Affiliates after the Effective Time) to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or assets;
(ix) each Contract that contains any standstill, exclusivity rights or “CBA”most favored nation” provisions or minimum use or supply requirements that are material in any respect to the Company, the Company Subsidiaries and any Affiliates (including Parent or its Affiliates after the Effective Time);
(xvx) is an employment agreement each Contract relating to outstanding or Contract for potential Indebtedness (or commitments in respect thereof) of the employment Company or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation the Company Subsidiaries (whether cash and/or otherwiseincurred, assumed, guaranteed or secured by any asset) in an amount in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability10,000,000;
(xvixi) are severance agreements, programs, policies, arrangements each Contract (or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with form thereof and a Governmental Entity or, to the knowledge list of the Company, is any material subcontract (at any tierparties thereto) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate Affiliate (other than a wholly-owned Company Subsidiary) of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including hand (other than any Contract that is a Company Benefit Plan);
(xii) any Contract (or form thereof and a list of the parties thereto) pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate Affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary)member;
(xxxiii) contains (A) any provision that requires each Company Lease involving annual lease payments in excess of $5,000,000 or aggregate lease payments over the purchase of all or a given portion remaining life of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability lease in excess of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months$10,000,000;
(xxixiv) each Contract that contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a leaseput, sublease, occupancy agreement call or other agreement (whether or real or personal property) similar right pursuant to which the Company or any of the Company Subsidiary is a party Subsidiaries could be required to purchase or sell, as either lessor applicable, any equity interests of any Person or lessee, providing for either material amount of assets (A) annual payments after other than the date hereof of $50,000 Company Equity Plans or more or (B) aggregate payments after the date hereof of $100,000 or more; oragreements entered pursuant thereto);
(xxiiixv) creates or grants each Contract that includes a material Lien, other than Permitted Liens and other than Contracts with customers entered into in indemnification obligation of the Company or any of its Subsidiaries which was granted outside of the ordinary course of business consistent with past practice;
(xvi) each Contract that obligates any of the Company or the Company Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person other than advances for expenses required under customary joint operating agreements and customary advances to operators of Oil and Gas Interests of the Company and the Company Subsidiaries not covered by a joint operating agreement or participation agreement;
(xvii) [reserved];
(xviii) [reserved];
(xix) [reserved];
(xx) each Oil and Gas Lease that contains express provisions (A) establishing bonus obligations in excess of $10,000,000 that were not satisfied at the time of leasing or signing or (B) providing for a fixed term, even if there is still production in paying quantities;
(xxi) each agreement (other than Oil and Gas Leases) pursuant to which any of the Company or its Subsidiaries has paid amounts associated with any Production Burden in excess of $10,000,000 during the immediately preceding fiscal year or with respect to which the Company reasonably expects that it and/or one of its Subsidiaries will make payments associated with any Production Burden in any of the next three succeeding fiscal years that could, based on current projections, exceed $10,000,000 per year;
(xxii) each agreement which is a joint development agreement, joint operating agreement, farmout agreement, farmin agreement, area of mutual interest agreement, exploration agreement, participation agreement, acreage dedication agreement, pooling agreement, or pooling declaration, unit agreement that either (A) is material to the businesses of the Company and the Company Subsidiaries, taken as a whole, or (B) would reasonably be expected to require the Company and the Company Subsidiaries to make expenditures in excess of $10,000,000 in the aggregate in any 12-month period following the date hereof;
(xxiii) any Contract with any current employees, officers or directors of the Company or any Company Subsidiary which provides for annual base compensation in excess of $200,000, other than Contracts that are terminable without penalty or notice;
(xxiv) any Contract with any oilfield services company or other independent contractors that would reasonably be expected to require the Company and the Company Subsidiaries to make expenditures in excess of $5,000,000 in the aggregate in any 12-month period following the date hereof; and
(xxv) any Contract not otherwise described in any other subsection of this Section 3.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company.
(b) Each Contract The Company has made available to Parent copies of all written Company Material Contracts (other than, for the avoidance of doubt, Contracts disclosed in Company SEC Documents) required to be listed identified in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a3.17(a) of the Company Disclosure Letter to which such Contract is relevant). Neither in the Company nor any Company Subsidiary is, with or without notice, or lapse possession of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary , including all material amendments thereto.
(c) Except as has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid not had and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not be reasonably expected to have a Company Material Adverse Effect, (i) each Company Material Contract is, and immediately after the Effective Time will continue to be, a valid and binding agreement of the Company or one of the Company Subsidiaries party thereto and, to the Company’s Knowledge, each other party thereto, and (ii) each Company Material Contract (except for any such Contract that has expired or terminated in accordance with its terms) is in full force and effect, subject to the Bankruptcy Enforceability Limitations, and Equity Exception. The each of the Company and the Company Subsidiaries (to the extent it is a party thereto or bound thereby) and, to the Company’s Knowledge, each other party thereto has made available performed in all material respects all obligations required to Parent true, correct and complete copies of be performed by it under each Company Material ContractsContract. Neither the Company nor any of the Company Subsidiaries, and, to the Company’s Knowledge, no other party thereto is (or, with or without notice or lapse of time would be) in default or breach in any material respect under the terms of any such Company Material Contract and, to the Company’s Knowledge, no event has occurred that (with or without notice or lapse of time) will, or would reasonably be expected to (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity or performance of any Company Material Contract or (C) give any Person the right to cancel, terminate or modify any Company Material Contract.
(d) Since January 1, 2017, neither the Company nor any of the Company Subsidiaries has received any notice of any material violation or breach of, material default under or intention to cancel, terminate, materially modify or not renew, any Company Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Newfield Exploration Co /De/), Merger Agreement (Encana Corp)
Company Material Contracts. (a) Section 3.22(a4.18(a) of the Company Disclosure Letter Schedule sets forth a true, correct and complete list, and listing as of the date hereof of all of the Contracts (other than any Company has made available to Parent true, correct and complete copies, Benefit Plan) of each Contract, including amendments thereto, the following types to which the Company or any of the Company its Subsidiaries is a party or by which it is any material assets of the Company or any of its Subsidiaries are bound or to which any of their respective assets are subject, as of the date of this Agreement, that:
(i) is a partnershipContracts with the top ten service providers of the Company and its Subsidiaries, 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 arrangementas determined by annual spend;
(ii) provides for joint venture agreements, partnership agreements and limited liability company agreements, in each case, that are material to the creationCompany and its Subsidiaries, incurrencetaken as a whole;
(iii) Contracts relating to any completed sales, assumption assignments, transfers or guarantee other dispositions of or otherwise relates to Indebtedness assets 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 its Subsidiaries within the five years prior to the sale date hereof with the aggregate consideration under any such Contract of any of the material properties $5,000,000 or assets (including material Owned Company Intellectual Property) of more and to which the Company or any Company Subsidiaryof its Subsidiaries has any material continuing liability or obligation, other than in the ordinary course of business consistent with past practice;
(iv) provides Contracts providing for the acquisition or disposition by the Company or any of its Subsidiaries of any business, division or product line (whether by merger, sale of stock, sale of assetsassets or otherwise), or otherwise) capital stock of any interest other Person, in any person or any business or division thereofeach case, 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”, contingent purchase price or deferred purchase price or contingent payment other material obligations of the Company or indemnification obligations its Subsidiaries remain outstanding, except, in each case of this Section 4.18(a)(iv), for Contracts (x) relating to Indebtedness, (y) providing for the acquisition or disposition of inventory, products or assets in the ordinary course of the Business, including in connection with MSR Related Transactions, whole loans, issuance of GNMA securities, securitizations or other similar transactions involving Mortgage Servicing Rights or Mortgage Loans or (z) for inventory, products, equipment, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of the Business;
(v) make any investment in, Contract evidencing or loan guaranteeing or capital contribution to, providing for the incurrence of indebtedness for borrowed money in excess of $10,000,000;
(vi) any person Contract under which an Encumbrance (other than a Permitted Encumbrance) has been imposed on any of the assets or properties of the Company and its Subsidiaries, excluding any such Contract that also evidences or any Company Subsidiary) guarantees indebtedness for borrowed money in an amount less than $5,000,000 and other than (i) extensions purchase money security interests in connection with the acquisition of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities equipment in the ordinary course of business;
(vivii) 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 all 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to Contracts under which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted its Subsidiaries grants to a third partyparty any rights under any Intellectual Property, or material right be lost by other than non-exclusive licenses granted to customers in the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line ordinary course of business or with any person or in any geographic area;
and (viiiB) involves sole-source or single-source suppliers of all material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person Contracts granting to the Company or any of the Company its Subsidiaries that isany right under any Intellectual Property owned by a third party (excluding non-exclusive, individually commercially available software or data licenses but including material source code escrow agreements) for a one-time or annual fee in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contractsexcess of $1,000,000;
(xviii) is any Contract with a license Material Customer or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by Material Supplier that obligates the Company or any of the Company its Subsidiaries to conduct business on a “most favored nation” basis with any other personthird party, including with respect to pricing or terms of delivery or service level credits, or that contains exclusivity, right of first refusal or right of first offer obligations or restrictions; and
(ix) any Contracts whereby the Company with any Governmental Entity (other than Permits and Contracts pursuant to which any Governmental Entity is a customer or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom client of the Company or any of its Subsidiaries).
(b) Correct and complete copies of each Contract required to be identified in Section 4.18(a) of the Company Subsidiaries Disclosure Schedule, including amendments thereto (collectively, the “Company Material Contracts”) have been made available to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, Purchaser. Except as would not be material to the Company and its Subsidiaries, taken as a whole, (i) all of the Company Material Contracts (other than Contracts no longer in effect after the date of this Agreement that have expired in accordance with their terms or have been terminated in accordance with this Agreement) are in full force and effect, are valid and binding on the Company and any of its Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between to the extent that the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company such Subsidiary is a party (eachthereto, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, and to the knowledge Knowledge of the Company, is any material subcontract the other parties thereto, and are enforceable in accordance with their respective terms, subject in each case to the Enforceability Exceptions, (at any tierii) under or for the purpose Company and each of fulfilling a contract or order from a Governmental Entity its Subsidiaries (as the ultimate customercase may be) has performed all obligations required to be performed by it pursuant to such Company Material Contracts, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or and (Biii) to the knowledge Knowledge of the Company, is financed there are no existing written threats of default, breaches or violations of any of such Company Material Contracts by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contracts.
Appears in 2 contracts
Samples: Transaction Agreement (Replay Acquisition LLC), Transaction Agreement (Replay Acquisition Corp.)
Company Material Contracts. (a) Section 3.22(a4.18(a) of the Company Disclosure Letter Schedule sets forth a truelisting as of the date hereof of all of the currently effective Contracts of the following types, correct and complete list, and the excluding Company has made available to Parent true, correct and complete copies, of each Contract, including amendments theretoBenefit Plans, to which the Company or any of the Company its Subsidiaries is a party or by which it is any assets of the Company or any of its Subsidiaries are 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 personContracts, other than this Agreement, (A) purchase orders 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) Contracts with respect to the purchase of products for resale or manufacturing, which conditions precedent involve commitments to make capital expenditures or which provide for the settlement have not been satisfied or (C) which materially affects the conduct purchase of the Company’s or any Company Subsidiary’s business;
(vii) contains any provision or covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (orassets, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products goods or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company its Subsidiaries to from any other person, including any Contracts whereby the Company or one Person which have a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) purchase price in excess of $100,000, (B) providing for 5,000,000 during the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liabilitymost recently completed fiscal year;
(xviii) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material LienContracts, other than Permitted Liens and other than Contracts with customers sales orders entered into in the ordinary course of business consistent with past practice, which provide for the sale of goods or services by the Company or any of its Subsidiaries which have aggregate revenue in excess of $5,000,000 during the most recently completed fiscal year;
(iii) joint venture agreements, partnership agreements, and limited liability company agreements and each similar type of Contract (however named), including those involving a sharing of profits, losses, costs or liabilities with any other Person;
(iv) other than Contracts for the sale of inventory in the ordinary course of business or the sale of obsolete assets, Contracts for (x) the sale, assignment, transfer or other disposition of assets of the Company or any of its Subsidiaries or (y) the acquisition of assets or debt or equity interest in any other Person (whether by purchase, merger or otherwise), in either case involving a purchase price (in a single transaction or series of related transactions) in excess of $1,000,000 or under which the Company or any of its Subsidiaries has any continuing liability or obligation;
(v) any Contract (x) evidencing or guaranteeing Indebtedness for borrowed money or otherwise placing a material Encumbrance on the assets of the Company or its Subsidiaries, in each case, in excess of $5,000,000 or (y) under which the Company or any of its Subsidiaries has made advances or loans to any other Person;
(vi) any CBA;
(vii) any Contract that is a settlement, conciliation or similar agreement pursuant to which the Company or a Subsidiary will have any material outstanding obligation (including monetary or non-monetary) after the date of this Agreement;
(viii) Contracts with any Equity Holder, employee, officer or director of the Company or any of its Subsidiaries, or any Affiliate or immediately family member of any of the foregoing (other than the Company and its Subsidiaries), except in each case for any Contract entered into in the ordinary course of business on arms’ length terms or in the case of any employee, officer or director, any employment Contract or Contract with respect to the issuance of equity in the Company;
(ix) Contracts which (i) contain a covenant not to compete or otherwise limit the freedom of the Company or any of its Affiliates to engage in any business or compete with any Person, (ii) require the Company or any of its Affiliates to conduct business on a “most favored nation” or similar basis, or (iii) obligate the Company or any of its Affiliates to do business on an exclusive or similar basis;
(x) any Contract with a key opinion leader set forth on Section 1.1(d) of the Company Disclosure Schedule;
(xi) Contracts with any Governmental Entity;
(xii) Contracts with Material Payors; and
(xiii) material Contracts relating to the licensing, ownership, development, or use of any Intellectual Property, excluding all off-the-shelf, commercially available software licenses or non-exclusive licenses granted by the Company or its Subsidiaries in the ordinary course of business.
(b) Each Correct and complete copies of each Contract required to be listed identified in Section 3.22(a4.18(a) of the Company Disclosure LetterSchedule, whether or including all amendments thereto (collectively, the “Company Material Contracts”) have been made available to Parent. Except as would not set forth in such section have a Material Adverse Effect, (i) all of the Company Disclosure LetterMaterial Contracts (other than those that have expired or been terminated in accordance with their terms, is referred to in this Agreement except as a “Company Material Contract” (with each such Contract listed under the corresponding clause result of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder violation thereof by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice one of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is its Subsidiaries) are in full force and effect with respect to, and are enforceable against the Company and or any Company Subsidiary of its Subsidiaries that is a party thereto andthereto, and to the knowledge Knowledge of the Company, the other parties thereto, in accordance with their respective terms, subject in each case to the Enforceability Exceptions, (ii) the Company and each of its Subsidiaries (as the case may be) has performed all obligations required to be performed by it pursuant to such Company Material Contracts, and (iii) to the Knowledge of the Company, there are no existing threats of default, breaches or violations of any of such Company Material Contracts by any other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contracts.
Appears in 2 contracts
Samples: Merger Agreement (Colfax CORP), Merger Agreement (DJO Finance LLC)
Company Material Contracts. (a) Section 3.22(a3.12(a) of the Company Disclosure Letter sets forth contains 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:of all Company Material Contracts. For all purposes of and under this Agreement, a “Company Material Contract” shall mean any of the following to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective assets or properties are currently bound (but shall not include Company Employee Plans, Company International Employee Plans or purchase orders received or issued by the Company or any of its Subsidiaries in the ordinary course of the Company’s business consistent with past practice):
(i) any “material contract” (as such term is a partnershipdefined in Item 601(b)(10) of Regulation S-K under the Securities Act);
(ii) any Contract that explicitly limits in any material respect the ability of the Company or any of its Subsidiaries to engage in any line of business or to engage in its business in any geographic location or to sell to or purchase from any Person;
(iii) any Contract containing any right of exclusivity in favor of other parties thereto;
(iv) any Contract relating to the disposition or acquisition by the Company or any Subsidiary of the Company, joint venturedirectly or indirectly, strategic allianceof any Person or other assets or business enterprise (whether by merger, collaborationsale of stock, co-promotion, profit-sharing, joint research sale of assets or otherwise) for consideration in excess of $1,000,000 (other than inventory purchases and development capital equipment purchases in the ordinary course of business consistent with past practice) that contains any continuing or similar arrangementoutstanding obligations, or provides for that was entered into after August 1, 2014 (whether or governs not such acquisition or disposition has been consummated prior to the date of this Agreement);
(v) any Contract that relates to any Outsourcing Arrangement or to the formation, creation, operation, management or control of such arrangementany legal partnership, joint venture entity, limited liability company, or other similar arrangement with a third person that involves the sharing of profits and losses;
(iivi) provides for any Contract involving Indebtedness having an outstanding amount in excess of $100,000 (other than any intercompany agreements solely between the creation, incurrence, assumption Company and its Subsidiaries);
(vii) any Contract that (A) prohibits the payment of dividends or guarantee distributions in respect of or otherwise relates to Indebtedness the capital stock of the Company or any Company Subsidiaryof its Subsidiaries, in each case, for borrowed money;
(iiiB) grants any rights of first refusal, rights of first negotiation, exclusivity or other similar rights or options to any person with respect to prohibits the sale of any pledging of the material properties or assets (including material Owned Company Intellectual Property) capital stock 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective its Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has prohibits the issuance of any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted guaranty by the Company or any of its Subsidiaries or (D) imposes any restrictions on the Company Subsidiaries to any other person, including any Contracts whereby the Company use of cash or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom cash equivalents of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company its Subsidiaries (including, but not limited to, other than any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement such restrictions that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”are Permitted Liens);
(xvviii) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Subsidiary of the Company has provided funds to or made any loan, capital contribution or other investment in, or assumed, guaranteed or agreed to act as a surety in excess of $250,000 with respect to any liability of any Person that is neither the Company nor any Subsidiary has an obligation of the Company;
(ix) any Contract that (A) grants the other party or any third Person “most favored nation” or similar status, (B) contains “non-solicitation,” “no hire” or similar provisions which prevent the Company or any Subsidiary of the Company from soliciting, hiring, engaging, retaining or employing any other Person’s current or former employees, in a manner that individually or in the aggregate is material to indemnify such officerthe Company and its Subsidiaries, directortaken as a whole, affiliate (C) contains any right of first refusal, first notice or family member (excluding, for first negotiation with respect to the avoidance sale of doubt, any Company Benefit Plans and governing documents portion of the equity or assets of the Company or any Company Subsidiary)Subsidiary of the Company, (D) grants the other party or any third Person an exclusive license or exclusive supply distribution, reseller or other similar exclusive rights;
(xx) contains (Ax) any provision sale, resale, marketing, merchandising or distribution Contract with a third Person that by its terms requires an aggregate payment or receipt by the purchase Company or its Subsidiaries under such Contract of all more than $500,000 over the remaining term of such Contract or a given portion of the Company’s or more than $250,000 annually, other than any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) monthsEmployee Plans;
(xxixi) contains any provision allowing a Contract that has continuing guarantee, “major antenna product distributorearn-out” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) contingent payment obligations, in each case that is reasonably likely to which result in payments by the Company or any of its Subsidiaries in excess of $250,000;
(xii) any Contract listed on Section 3.15(f) and Section 3.15(g) of the Company Subsidiary is a party as either lessor or lessee, providing for either Disclosure Letter;
(xiii) any Contract relating to (A) annual payments after the date hereof future acquisition of $50,000 or more material Intellectual Property of a third party (other than those are listed in Section 3.12(a)(xii)) or (B) aggregate payments after the date hereof future disposition of $100,000 or more; or
future Lien (xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers Liens) on Company-Owned Intellectual Property;
(xiv) any Contract not entered into in the ordinary course of business consistent between the Company or any of its Subsidiaries, on the one hand, and any Affiliate thereof (other than any Subsidiary of the Company), on the other hand;
(xv) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Governmental Authority, on the other hand, or any Contract pursuant to which the Company or any of its Subsidiaries is knowingly acting as a subcontractor to another Person in connection with a Contract between such Person and a Governmental Authority;
(xvi) any master purchase, master services or equivalent Contract with any Company Material Customer (excluding, for clarity, purchase orders and non-disclosure agreements);
(xvii) any master purchase, master services or equivalent Contract with any Company Material Supplier (excluding, for clarity, purchase orders and non-disclosure agreements);
(xviii) any Contract relating to the settlement or other resolution of any Legal Proceeding during the past practicethree (3) years pursuant to which the Company or any of its Subsidiaries has any continuing Liability or restriction on the part of the Company or any of its Subsidiaries;
(xix) any employment or consulting Contract that is not terminable at will or for convenience by the Company on less than 30 days’ notice and obligating the Company or any of its Subsidiaries to make payments or provide compensation in excess of $300,000 annually; and
(xx) any Contract, or group of Contracts with a Person (or group of affiliated Persons) (excluding purchase orders issued in the ordinary course of business), the termination or breach of which would reasonably be expected to have a Company Material Adverse Effect and is not disclosed pursuant to clauses (i) through (xix) above.
(b) Each Contract required True and complete copies of all Company Material Contracts as of the date of this Agreement (including all amendments, exhibits and schedules thereto) have been (i) publicly filed with the SEC in the Company Annual Report or any Company SEC Reports filed with or furnished to be listed in Section 3.22(a) the SEC by the Company after the filing of the Company Disclosure Letter, whether Annual Report with the SEC but prior to the date hereof or not set forth in (ii) Made Available to Parent.
(c) Each Company Material Contract is valid and binding on the Company and/or each such section Subsidiary of the Company Disclosure Letterparty thereto, and, to the Knowledge of the Company, each other party thereto, and is referred to in this Agreement as a “full force and effect, enforceable against the Company Material Contract” (with or each such Contract listed under the corresponding clause of Section 3.22(a) Subsidiary of the Company Disclosure Letter party thereto, as the case may be, in accordance with its terms, subject to which such Contract is relevant)the Enforceability Limitations. Neither the Company nor any Company Subsidiary isof its Subsidiaries that is a party thereto nor, with or without noticeto the Knowledge of the Company, any other party thereto, is in breach of, or lapse of timedefault under, or both, in breach of or default under the terms of any such Company Material Contract, and, to the knowledge Knowledge of the Company, no event has occurred that, with or without notice, notice or lapse of time or both, would constitute such a material breach or default thereunder, except for such breaches and defaults that are not material default thereunder by to the Company or any Company Subsidiaryand its Subsidiaries, taken as a whole. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge As of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect todate hereof, the Company and its Subsidiaries have not received any written claim or notice of default, termination, failure to renew or cancellation under any such Company Subsidiary that is a party thereto andMaterial Contract, except as would not be material to the knowledge of the CompanyCompany and its Subsidiaries, each other party thereto, except for such failure that would not have taken as a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contractswhole.
Appears in 2 contracts
Samples: Merger Agreement (Cohu Inc), Merger Agreement (Xcerra Corp)
Company Material Contracts. (ai) Section 3.22(a5H(i) of the Company Disclosure Letter sets forth a true, correct and complete list, and list as of the date of this Agreement of each of the following types of written contracts to which the Company or any of its Subsidiaries is a party (collectively, the “Company Material Contracts”):
(a) any Lease involving Leased Real Property;
(b) any lease or similar agreement under which (a) the Company or any of its Subsidiaries is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third party or (b) the Company or any of its Subsidiaries is a lessor or sublessor of, or makes available for use by any third party, any real property or tangible personal property owned or leased by the Company or any of its Subsidiaries, in any case which has future required scheduled payments in excess of Fifty Thousand Dollars ($50,000) per annum and is not terminable by it upon notice of sixty (60) calendar days or less for a cost of less than Fifty Thousand Dollars ($50,000);
(c) any agreement, contract or other arrangement under which the Company or any of its Subsidiaries has borrowed any money or issued any note, indenture or other evidence of funded indebtedness or guaranteed indebtedness or liabilities of others (other than endorsements for the purpose of collection, or purchases of equipment or materials made available under conditional sales contracts, in each case in the ordinary course of business), in each case having an outstanding principal amount in excess of Fifty Thousand Dollars ($50,000);
(d) any agreement, contract or other arrangement pursuant to Parent truewhich the Company or any of its Subsidiaries has granted a Lien on any of the Assets, correct other than Liens constituting Permitted Encumbrances;
(e) any agreement or contract which creates a partnership, joint venture or similar arrangement;
(f) any agreement, or group of related of agreements, with any third party payor which paid the Company and complete copiesits Subsidiaries for the twelve (12) month period ending December 31, 2012, in excess of Five Hundred Thousand Dollars ($500,000);
(g) any agreement, or group of related of agreements (other than the Real Property Leases), with any vendor to whom the Company paid in excess of Two Hundred Thousand Dollars ($200,000) in respect of products or services provided to the Company or its Subsidiaries for the twelve (12) month period ending December 31, 2012;
(h) any agreement expressly limiting or restricting the ability of the Company or any of its Subsidiaries to (a) sell any product, (b) provide any service, (c) engage in any line of business, (d) compete with any Person in any geographic area, or (e) hire, solicit or retain any Person;
(i) any agreement that limits or restricts the Company’s or its Subsidiaries’ right to purchase any product without incurring a penalty;
(j) any agreement or contract relating to the acquisition or dispositions of any business, equity interests of any other Person, assets or properties (whether by merger, sale of capital stock, sale of assets or otherwise), which such acquisition was consummated after January 1, 2012, or pursuant to which the Company or such Subsidiary has or may have any material continuing obligations as of the date hereof;
(k) any agreement involving the resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute against the Company or any of its Subsidiaries pursuant to which the Company or such Subsidiary has material continuing obligations as of the date hereof; or
(l) any other agreement, contract or lease, in each Contract, including amendments theretocase not required to be included in clauses (i) through (xi) above (or which would be required to included in clauses (i) through (xi) above in the absence of dollar thresholds or other limitations set forth therein) or set forth on any of the other sections of the Company Disclosure Letter, to which the Company or any of the Company its 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 has future required scheduled payments to 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company its Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of One Hundred Thousand Dollars ($100,000, ) per annum and is not terminable by it upon notice of sixty (B60) providing for the payment of any cash calendar days or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products less for a period greater cost of less than twenty-four Fifty Thousand Dollars (24$50,000) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practicepurchase orders).
(bii) Each Contract required to be listed Except as set forth in Section 3.22(a5H(ii) of the Company Disclosure Letter, whether or not set forth in such section each of the Company Disclosure Letter, and its Subsidiaries is referred to in this Agreement as a “Company Material Contract” not (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without the lapse or time or the giving of notice, or lapse of time, or both, ) in material breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event nor has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor of its Subsidiaries received any Company Subsidiary has received notice written claim of any such an eventmaterial breach or default. To the knowledge of the Company, no other party to (with or without notice or lapse of time or the giving of notice, or both) is in material breach or default under any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse EffectContract. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect toand is legal, valid, binding and enforceable as to the Company and any Company Subsidiary that is a party thereto or one or more of its Subsidiaries, as applicable, in accordance with its terms and, to the knowledge of the Company, each as to the other party parties thereto, in each case, except for such failure that would not have a as enforceability may be limited by bankruptcy, insolvency, moratorium, fraudulent conveyance and other similar Laws affecting creditors’ rights generally and by general principles of equity. Except as set forth in Section 5H(ii) of the Company Disclosure Letter, no Company Material Adverse EffectContract has been terminated (other than pursuant to an expiration thereof in accordance with its terms) and there is no, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent trueKnowledge of the Company, correct and complete copies threatened termination or cancellation of any Company Material ContractsContract.
(iii) Section 5H(iii) of the Company Disclosure Letter (which may be updated by the Sellers during the thirty (30) day period following the Execution Date) sets forth a list of (a) all third party payors with which the Company or any of its Subsidiaries has a contractual relationship, (b) all vendors which provide drugs to the Company or any of its Subsidiaries and with which either the Company or any of its Subsidiaries has a contractual relationship, (c) all vendors which provide infusion-related equipment to the Company or any of its Subsidiaries and with which either the Company or any of its Subsidiaries has a contractual relationship, and (d) all vendors that provide services or goods to the Company and its Subsidiaries under a “national” or “global” Contract.
Appears in 1 contract
Company Material Contracts. (a) Section 3.22(aPart 2.10(a) of the Company Disclosure Letter sets forth a true, correct and complete list, and Schedule lists each Contract in effect as of the Company has made available to Parent true, correct and complete copies, date of each Contract, including amendments thereto, this Agreement to which the Company or any of the Company its Subsidiaries is a party or by which it is any of its properties or assets are otherwise bound of the following categories (such Contracts required to be disclosed under Part 2.10(a) of the Company Disclosure Schedule, the “Company Material Contracts”):
(i) any Contract that requires future payments by or to which the Company or any of their respective its Subsidiaries in excess of $250,000 in any calendar year;
(ii) (A) any Contract relating to the acquisition or disposition by the Company or any of its Subsidiaries of any material operating business or tangible assets; or (B) any Contract under which the Company or any of its Subsidiaries have any outstanding indemnification obligations, in each case of subclause (A) and (B), other than any such Contracts entered into in the Ordinary Course of Business;
(iii) (A) any guaranty, surety or performance bond or letter of credit issued or posted, as applicable, by the Company or any of its Subsidiaries; (B) any Contract evidencing or relating to Debt of the Company or any of its Subsidiaries or providing for the creation of or granting any Lien upon any of the property or assets are subject, of the Company or any of its Subsidiaries (excluding Company Permitted Liens); (C) any Contract (1) relating to any loan or advance to any Person which is outstanding as of the date of this Agreement, that:
Agreement (iother than immaterial advances to employees and consultants in the Ordinary Course of Business) is a partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development or similar arrangement, (2) obligating 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 committing the Company or any Company Subsidiaryof its Subsidiaries to make any such loans or advances; and (D) any currency, in each case, for borrowed money;
(iii) grants any rights of first refusal, rights of first negotiation, exclusivity commodity or other similar rights hedging 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 Subsidiaryswap Contract;
(iv) provides for the acquisition any offer letter, employment agreement, consulting or disposition (whether by merger, sale of stock, sale of assetsindependent contractor agreement, or otherwise) of other similar agreements or arrangements with 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, current Company Service Provider (A) entered into since January 1, 2021 that is not terminable at-will and which involves an asset value in excess of $100,000 without penalty by the Company or its applicable Subsidiary; or (B) pursuant to which any material earn-outcurrent Company Service Provider that provides for severance, deferred retention payments, change of control payments or contingent bonuses, accelerated vesting, or any payment or indemnification obligations remain outstandingbenefit that may or will become due as a result of the Merger;
(v) make any investment incollective bargaining agreement or similar Contract with any trade union, labor union, works council or loan or capital contribution to, any person other labor organization (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“Collective Bargaining Agreement”);
(vi) provides for any Contract that is a settlement, conciliation or similar Contract relating to the settlement of Legal Proceedings, including separation agreements with any Proceeding Company Service Provider and settlement agreements, consent decrees, or other similar agreements with any Governmental Body, and (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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary of its Subsidiaries has agreed not any current actual or potential liability or will be required after the date of this Agreement to acquire pay any assets monetary obligations or securities of another person(B) contains material obligations or limitations on the Company’s conduct;
(vii) any joint venture, (D) that requires any material benefit to be granted to a third partypartnership, or material right be lost by the Company joint development or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic areasimilar Contracts;
(viii) involves sole-source or single-source suppliers of material tangible products or services any Contract that obligates (including through the use of diligent or commercially reasonable efforts or similar undertaking) the Company or any of the Company’s products its Subsidiaries to develop or services)commercialize or manufacture any Company Product;
(ix) is a license or other any Contract relating to providing for the manufacture of any Intellectual Property Rights granted by Company Product that includes regulatory starting materials, drug substance, drug product and drug packaging that involves payments in excess of $250,000 in any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contractscalendar year;
(x) is a license any Contract with an academic institution, research center or other Contract relating to Governmental Body (or any Intellectual Property Rights that, individually Person working for or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or on behalf of any of the foregoing), in each case, that provides for research and development activities involving the creation of any material Company Subsidiaries Owned Intellectual Property (other than Contracts disclosed or required to any other person, including any Contracts whereby be disclosed under Part 2.8(j) or 2.8(k) of the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental ContractsDisclosure Schedule);
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any of its Subsidiaries (A) is obligated to pay to any Third Party a percentage (or percentage interest) of sales, revenues or profits, or any development, regulatory or commercial or similar milestone payments, in each case, with respect to any Company Subsidiary has an obligation Product or (B) is obligated to indemnify such officersupply any Company Product (excluding pursuant to purchase orders under existing agreements), directorin each case whether as of the date of this Agreement or as of a future date, affiliate including upon the occurrence of any future event;
(xii) any Contract (A) containing covenants restricting or family member (excludingpurporting to restrict competition which, for in either case, have, would have or purport to have the avoidance effect of doubtprohibiting the Company, any Company Benefit Plans and governing documents of its Subsidiaries or, after the Closing, Parent or the Second Surviving Company or any Company Subsidiary);
(xx) contains (A) of its Subsidiaries from engaging in any provision that requires business or activity in any geographic area or other jurisdiction, other than any such covenant set forth in this Agreement or the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations)Ancillary Agreements, (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to in which the Company or any of its Subsidiaries have granted “exclusivity” or that requires the Company Subsidiary or any of its Subsidiaries to deal exclusively with, or grant exclusive rights or rights of first refusal to, any customer, vendor, supplier, distributor, contractor or other Person or that is a requirements contract, (C) that includes minimum purchase conditions or other requirements, in either case that exceed $100,000 in any calendar year to the extent the Contract is not terminable without penalty on 90 days’ or shorter notice, or (D) containing a “most-favored-nation,” “best pricing” or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, is required to be at least as favorable to such party as either lessor or lessee, providing for either those offered to another Person;
(Axiii) annual payments after the date hereof of any Contract involving commitments to make capital expenditures involving $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; orindividually;
(xxiiixiv) creates any lease, sublease, rental or grants a occupancy agreement, license, installment, and conditional sale agreement or agreement under which the Company or any of its Subsidiaries are the lessee or lessor of, or own, use or operate any leasehold or other interest in any real property or material Lienpersonal property;
(xv) any Inbound License, or Outbound License;
(xvi) any Contract with any Affiliate (other than Permitted Liens and a Subsidiary), director, executive officer (as such term is defined in the Exchange Act), Person holding 5% or more of the Company Shares, or any Affiliate (other than Contracts with customers entered into the Company) or immediate family member of any of the foregoing;
(xvii) any power of attorney granted by the Company or any of its Subsidiaries that is currently in effect; and
(xviii) any Contract not otherwise listed or required to be listed in Part 2.10(a) of the ordinary course of business consistent with past practiceCompany Disclosure Schedule that, if terminated, or if such Contract expired without being renewed, would have a Company Material Adverse Effect.
(b) Each With respect to each Company Material Contract required to be listed in Section 3.22(aPart 2.10(a) of the Company Disclosure LetterSchedule, whether except for such Company Material Contracts that expire by their terms on or not set forth in prior to the Closing Date and except for such section Company Material Contracts that may be terminated or materially amended consistent with Section 4.2 (Conduct of the Company Disclosure Letter, is referred to in this Agreement as a “Business of the Company) on or after the date hereof: (i) such Company Material Contract” (with each such Contract listed under is binding and enforceable against the corresponding clause of Section 3.22(a) Company or its Subsidiaries and, to the Knowledge of the Company Disclosure Letter Company, against each other party thereto, in accordance with its terms, subject to which such Contract is relevant). Neither (A) Laws of general application relating to bankruptcy, insolvency and the relief of debtors and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies; and (ii) neither the Company nor any of its Subsidiaries is in material breach or material default of such Company Subsidiary isMaterial Contract or, with the giving of notice or the giving of notice and passage of time without notice, or lapse of time, or botha cure would be, in material breach or material default of or default under the terms of any such Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge Knowledge of the Company, no other party to any such Company Material Contract is in material breach or material default of or default under the terms of any such Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity ExceptionContract. The Company has made available to Parent true and complete copies of the true, correct and complete copies copy of each such Company Material ContractsContract (including all modifications, amendments and supplements thereto and waivers thereunder). Since January 1, 2023, none of the Company or its Subsidiaries has received any written notice or, to the Knowledge of the Company, other communication regarding any material violation or material breach of, or material default under, any Company Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Nuvation Bio Inc.)
Company Material Contracts. (a) Section 3.22(a3.17(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 subjectforth, as of the date of this Agreement, that:a list of the following Contracts to which the Company or any of its Subsidiaries is a party (the “Company Material Contracts”):
(i) any Contract that is reasonably likely to require, during the remaining term of such Contract, annual payments (A) to the Company and its Subsidiaries of more than $1,000,000 or (B) from the Company and its Subsidiaries of more than $500,000;
(ii) any Contract that cannot be terminated by the Company or its Subsidiaries on less than ninety (90) days’ notice (without a monetary penalty) and is reasonably likely to require, during the remaining term of such Contract, annual payments (A) to the Company and its Subsidiaries of more than $1,000,000 or (B) from the Company and its Subsidiaries of more than $500,000;
(iii) any partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development alliance or other similar arrangement, agreement or provides for or governs arrangement relating to the formation, creation, operation, management or control of such arrangement;
(ii) provides for any partnership, joint venture or strategic alliance that is material to the creation, incurrence, assumption or guarantee of or otherwise relates to Indebtedness business 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 Subsidiaryand its Subsidiaries taken as a whole;
(iv) provides for the any Contract entered into in connection with an acquisition or disposition by the Company or its Subsidiaries since the Look-Back Date involving consideration in excess of $500,000 of any Person or other business organization, division or business of any Person (whether by mergermerger or consolidation, sale by the purchase of stock, sale of assets, or otherwise) of any a controlling equity interest in any person or any business or division thereof, or a material portion substantially all of the assets of such Person or by any personother manner);
(v) any Contract with outstanding obligations for the sale or purchase of personal property or fixed assets having a value individually, other than this Agreementwith respect to all sales thereunder, (A) entered into since January 1, 2021 and which involves an asset value in excess of $100,000 or (B) pursuant 1,000,000 or, with respect to which any material earn-outall purchases thereunder, deferred or contingent payment or indemnification obligations remain outstanding;
(v) make any investment inin excess of $500,000, or loan or capital contribution to, any person (other than the Company sales or any Company Subsidiary) and other than (i) extensions of credit purchases in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course sales of business;obsolete equipment;
(vi) provides any Contract (other than solely among direct or indirect wholly owned Subsidiaries of the Company) relating to Indebtedness for the settlement of any Proceeding (A) which (x) will involve payment obligations after the date hereof borrowed money 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 business500,000;
(vii) contains any provision or covenant Contract that contain provisions that (A) limiting expressly limit in any material respect either the ability type of business in which the Company or any Company Subsidiary its Subsidiaries (or, or after the consummation of Effective Time, Parent or its Subsidiaries) may engage in or the Merger, Parent, the Surviving Corporation manner or locations in which any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) them may so engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries)in, (B) that has any grants “most favored nationsnation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Surviving Company and its Subsidiaries or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill expressly prohibits or similar agreement pursuant to which limits the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom rights of the Company or any of the Company its Subsidiaries to make, sell or distribute any products or services, or use, assert, enforcetransfer or distribute, or otherwise exploit enforce any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited of their rights with respect to, any settlement agreement or co-existence agreement), but excluding Incidental Contractsof their material assets;
(xiiviii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company productsIP Contract;
(xiiiix) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary of its Subsidiaries has an obligation agreed to indemnify provide any third party with access to source code for any material Software included in the Intellectual Property of the Company, or to provide for such officer, director, affiliate source code to be placed in escrow or family member (excluding, a similar arrangement for the avoidance benefit of doubta third party (including upon the occurrence of specified events);
(x) any Contract between the Company or any of its Subsidiaries, on the one hand, and any Company Benefit Plans and governing documents director or officer of the Company or any Person beneficially owning 5.00% or more of the outstanding shares of Company Subsidiary)Common Stock or any of their respective Affiliates, on the other hand;
(xx) contains (Axi) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into Contract not made in the ordinary course of business consistent with past practiceand not disclosed pursuant to any other clause under this Section 3.17 and expected to result in revenue or require expenditures in excess of $1,000,000 in the calendar year ending December 31, 2021 or any subsequent calendar year.
(b) Each Contract required to be listed in Section 3.22(a) A true and correct copy of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “each Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter has been made available to which such Contract is relevant)Parent. Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to Except for any Company Material Contract is in breach that has terminated or will terminate upon the expiration of or default under the terms of any Company Material Contract where such breach or defaultstated term thereof prior to the Closing Date, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each each Company Material Contract is a valid and binding obligation ofon the Company or its Subsidiaries, as applicable, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, except for such failure that as would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There is no default under any such Contracts by the Company or its Subsidiaries, subject or to the Bankruptcy Knowledge of the Company, any other party thereto, and Equity Exception. The no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company has made available or its Subsidiaries, or to Parent truethe Knowledge of the Company, correct and complete copies of Company any other party thereto, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Material ContractsAdverse Effect.
Appears in 1 contract
Company Material Contracts. (a) Section 3.22(a2.12(a) of the Company Disclosure Letter Schedule sets forth a true, correct and complete list, and the Company has made available to Parent true, correct and complete copies, list of each Contract, including amendments thereto, Contract of the following types to which the Company or any of the Company its Subsidiaries is a party or by which it is bound or to which the Company or any of its Subsidiaries or any of their respective assets are subject, or properties is bound as of the date Agreement Date (excluding Company Benefit Arrangements set forth on Section 2.17(l) of this Agreementthe Disclosure Schedule), thatincluding the applicable subsection(s) to which such Contract is responsive:
(i) any Contract providing for payments (whether fixed, contingent or otherwise) by or to the Company or any of its Subsidiaries (excluding offer letters and employment arrangements for at-will employment) (A) in an annual amount of $125,000 or more or (B) in an aggregate amount of $250,000 or more;
(ii) any Contract with the Company’s users, customers or clients other than pursuant to a form of agreement without any material deviation from the Company’s Standard Customer Agreement;
(iii) any dealer, distributor, reseller, OEM (original equipment manufacturer), VAR (value added reseller), sales representative or similar Contract under which any third party is authorized to sell, license, sublicense, lease, distribute, market or take orders for any Company Offering or Company Technology;
(iv) any Contract that (a) provides for the authorship, invention, creation, conception or other development of any Technology or Intellectual Property Rights (A) by the Company or any of its Subsidiaries for any other Person or (B) for the Company or any of its Subsidiaries by any other Person (other than pursuant to the Company’s then-current standard form Invention Assignment Agreement which has not been revised in any way), including, in the case of each of clauses (A) and (B), any joint development, (b) provides for the assignment or other transfer of any ownership interest in Technology or Intellectual Property Rights (1) to the Company or any of its Subsidiaries from any other Person other than pursuant to the Company’s then-current standard form Invention Assignment Agreement which has not been revised in any way and under which no Technology necessary for the operation of the Company Business has been excluded from assignment or (2) by the Company or any of its Subsidiaries to any other Person, (c) includes any grant of an Intellectual Property License to any other Person by the Company or any of its Subsidiaries (other than, with respect to this subsection (c) only, Standard Outbound Licenses), or (d) includes any grant of an Intellectual Property License to the Company by any other Person (other than, with respect to this subsection (d) only, Standard Inbound Licenses);
(v) any Contract that relates to a partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharingjoint marketing, 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 arrangement with 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 businessPerson;
(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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license Employee Agreement or other Contract for or relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted employment by the Company or any of its Subsidiaries of any director, officer, consultant or employee which is not terminable without penalty with less than thirty (30) days’ notice (other than such Contracts with respect to former directors, officers, or employees under which no Company or Company Subsidiary obligations or liabilities remain outstanding);
(vii) any Contract involving any bonus, commission, pension, profit sharing, retirement or any other form of deferred compensation or incentive plan or any equity purchase, option, hospitalization, insurance or similar employee benefit plan or practice, whether formal or informal;
(viii) any Contract involving any severance, change-of-control, retention or benefits or similar payments;
(ix) any Contract between the Company or any of its Subsidiaries and any current or former advisor, independent contractor, or leased employee who has been involved in the authorship, invention, creation, conception or other development of any Company Technology or that relate to any issuance or promises or commitments to issue any Company Securities;
(x) any Contract under which the Company or any of its Subsidiaries has advanced or loaned any amount to any of its directors, officers, or employees (other than routine advances for business expenses or under the Company’s 401(k) plan) or to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental ContractsPerson;
(xi) any Contract containing covenants limiting the freedom relating to or evidencing any Indebtedness of the Company or any of its Subsidiaries or otherwise placing an Encumbrance (other than a Permitted Encumbrance) on any asset of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contractsof its Subsidiaries;
(xii) any Contract that restricts the Company or any of its Subsidiaries from, or following the Effective Time will restrict Parent or any of its Affiliates from (1) engaging in any aspect of their respective businesses, (2) participating or competing in any line of business, market or geographic area, (3) freely setting prices for its products, services or technologies (including most favored customer pricing provisions), or (4) soliciting potential employees, independent contractors, suppliers or customers (other than personnel non-solicitation restrictions with a term limit no longer than one year entered into in the Ordinary Course of Business that are not material to the Company or its Subsidiaries);
(xiii) any Contract under which the Company or any of its Subsidiaries grants or is bound by or, following the Effective Time, purports to have Parent or any of its Affiliates grant or be bound by, any exclusive rights, rights of refusal, rights of first negotiation or similar rights;
(xiv) any Contract that following the Effective Time would or would purport to: (1) require Parent or any of its Affiliates to grant any Intellectual Property License or (2) restrict Parent or any of its Affiliates from performing any of the activities listed in 2.12(a)(xi)(1) – (4) except as such activities were restricted with respect to the Company under those Contracts at the time immediately preceding Closing;
(xv) any Contract relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any Company Securities, other than those Contracts in substantially the form of the standard agreement evidencing Company Options under the Company Stock Plan made available to Parent;
(xvi) any Contract with any labor union or any collective bargaining agreement or similar Contract with the Company’s or any of its Subsidiaries’ employees;
(xvii) any Contract relating to the settlement of any Action or threatened Action (including any agreement under which any employment-related claim is settled);
(xviii) any Contract with any Related Party, or with respect to which, to the Knowledge of the Company, a Related Party is directly or indirectly interested (other than those subject to the exceptions in Section 2.8);
(xix) any Company Lease;
(xx) any Contract relating to the acquisition or disposition of a material portion of the assets of, or any equity interest in, any Person or business, whether by way of merger, consolidation, amalgamation, plan or scheme of arrangement, purchase or sale of stock or assets, license or otherwise;
(xxi) any Contract with any Person with whom the Company or any of its Subsidiaries does not deal at arm’s length;
(xxii) any Contract that involves the sharing of profits or revenue with other Persons or the payment of royalties or referral fees to any other Person, excluding Non-Negotiated Vendor Contracts;
(xxiii) any Contract imposing any support, maintenance or service obligations on the part of the Company or any of its Subsidiaries, excluding any such Contract that has been entered into in the Ordinary Course of Business;
(xxiv) any Contract that contains an earn-out, escrow or other similar contingent payment or obligation;
(xxv) any data protection agreement, business associate agreement, or other Contract for which the primary purpose of such Contract is addressing privacy, data protection, or information security obligations;
(xxvi) any Contract between the Company or any Company Subsidiary of its Subsidiaries and any sales representativeGovernmental Authority, distributoruniversity, original equipment manufacturer, manufacturing, value added, remarketer, reseller, college other educational institution or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company productsresearch center;
(xiiixxvii) is a any Contract that involves performance of services indemnification, hold harmless agreement or delivery guarantee, excluding any indemnification provisions in Contracts with the Company’s customers in the Ordinary Course of goods, materials, supplies Business or equipment or development, consulting or other services commitments by included in Non-Negotiated Vendor Contracts; and
(xxviii) any power of attorney relating to the Company or any of its Subsidiaries that is currently effective and outstanding.
(b) All Company SubsidiaryMaterial Contracts are in written form. The Company has made available to Parent correct and complete copies of each Company Material Contract, or the payment therefor by including all modifications, amendments, and supplements thereto. Each of the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is Material Contracts constitutes a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity valid and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate binding obligation of the Company or any Company Subsidiary or of its Subsidiaries, as applicable (and any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Actother party thereto), on the other handas applicable, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officerenforceable in accordance with its terms, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, subject to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation ofEnforceability Exceptions, and is in full force and effect in accordance with its terms. No party to a Company Material Contract has claimed a force majeure event (or similar excuse in performance) due to COVID-19 with respect to, thereto. There has been no breach or default in any material respect by the Company and or any Company Subsidiary that is a party thereto andof its Subsidiaries (or, to the knowledge Knowledge of the Company, each any other party thereto, except for such failure that would not have a ) under any Company Material Adverse EffectContract, subject no event has occurred that (with or without notice or lapse of time, or both) would reasonably be expected to or would constitute a breach or default thereunder by the Company or any of its Subsidiaries (or, to the Bankruptcy Knowledge of the Company, any other party thereto), and Equity Exception. The neither the Company has made available nor any of its Subsidiaries have received (i) any written claim of any such breach or default in any material respect or (ii) written notice of cancellation by the other party to Parent true, correct and complete copies of any Company Material ContractsContract.
Appears in 1 contract
Samples: Merger Agreement (Ambarella Inc)
Company Material Contracts. (a) Section 3.22(a3.15(a) of the Company Contributor Disclosure Letter sets forth Schedule contains a true, correct and complete list, and as of the Company has made available to Parent true, correct and complete copiesdate hereof, of each binding written or oral agreement, license, arrangement, note, bond, mortgage, commitment, indemnity, indenture or lease (each, a “Company Material Contract”) to which Company or any Company Subsidiary is a party:
(i) that involves payment or other obligations due to be paid by or to the Company or by or to any Company Subsidiary aggregating more than $500,000 in any calendar year;
(ii) that relates to the lease of real property;
(iii) that involves any Intellectual Property (other than Excluded Software);
(iv) that creates a partnership, joint venture or limited liability company;
(v) that involves any capital expenditure or commitment with respect thereto in excess of $500,000;
(vi) that (A) creates, incurs, assumes or guarantees any Indebtedness (other than pursuant to lease obligations), (B) grants a Lien on its assets, whether tangible or intangible, to secure such Indebtedness, or (C) extends credit or advances funds to any Person (other than to customers of Company or any Company Subsidiary in the ordinary course of business), in each case, in excess of $500,000, individually or in the aggregate;
(vii) that materially limits or restricts the ability of Company or any Company Subsidiary to compete in, or otherwise to conduct its business;
(viii) that involves the purchase or sale of any business, corporation, partnership, joint venture, association or other business organization or any division, operating unit or product line thereof or any other material assets;
(ix) that involves any guarantee, indemnification obligation or similar commitment with respect to the obligations or liabilities of any other Person, in an aggregate amount in excess of $500,000;
(x) that relates to management services or to the employment of any officer, employee or other Person on a full-time or consulting basis;
(xi) that provides for severance, termination or employment or similar payments, including amendments theretoupon a change of control of the Company or any Company Subsidiary;
(xii) that is between Company or any Company Subsidiary (on the one hand) and any holder of Company Units;
(xiii) that is relating to the mortgaging or pledging any material property or group of material properties of the Company and any of the Company Subsidiaries;
(xiv) that involves that leasing, holding or operating of any personal property;
(xv) that is between the Company or any of the Company Subsidiaries and any agent and sales representative or that is relating to the marketing, printing, publishing or advertising of the Company’s or any of the Company Subsidiaries’ products or services;
(xvi) that creates a power of attorney or other similar grant of agency;
(xvii) that involves a settlement pursuant to which the Company or any of the Company Subsidiaries is a party or by which it is bound or will be required to which any of their respective assets are subjectpay, as of or after 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 consideration 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (500,000; or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective that is a “associatesmaterial contract” or “immediate family” members (as such terms are term is defined in Rule 12b-2 and Rule 16a-1 Item 601(b)(10) of the Exchange ActSEC Regulation S-K), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) True and complete copies of all Company Material Contracts, including all amendments, extension, renewals, guaranties waivers and modifications thereto (and, in the case of any oral leases, a written summary of the material terms of such lease), have been made available to Local Insight.
(i) Each Company Material Contract is valid and binding on, and enforceable by, the Company or the relevant Company Subsidiary, as applicable, and is in full force and effect; (ii) the Company and each Company Subsidiary has performed all material obligations required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred performed by it to in this Agreement as a “date under each Company Material Contract” ; (with each such Contract listed under the corresponding clause of Section 3.22(aiii) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither neither the Company nor any Company Subsidiary has received written notice of, any breach or violation of, or default under, any Company Material Contract; (iv) no event or condition exists that constitutes or, after notice or lapse of such an event. To time or both, will constitute, a material default on the knowledge part of the CompanyCompany or any Company Subsidiary under any Company Material Contract; (v) to the Knowledge of the Contributors, no other party to any Company Material Contract is in material breach of or default under thereunder; and (vi) none of the terms of any Company Material Contract where Contracts will terminate or be rescinded, or give rise to such breach right, or default, individually cease to be valid and enforceable agreements of the Company or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract Subsidiary, as applicable, by reason of the execution, delivery and performance of this Agreement or by any ancillary agreements executed in connection with this Agreement or the consummation of the transactions contemplated hereby or thereby.
(d) CBD Investor is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is not a party thereto andto any binding written or oral agreement, to the knowledge license, arrangement, note, bond, mortgage, commitment, indemnity, indenture or lease other than as described in Section 3.15(d) of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material ContractsContribution Disclosure Schedule.
Appears in 1 contract
Company Material Contracts. (a) Section 3.22(a4.10(a) of the Company Disclosure Letter sets forth a true, correct true and complete listlist of each Contract in effect as of the date hereof, excluding any Plans that are set forth on Section 4.18(a) of the Company Disclosure Letter or not required to be scheduled thereon, and all purchase orders or statements of work issued under each such Contract in the ordinary course of business, to which any Acquired Company is a party to or bound, and which falls within any of the following categories:
(i) Any Contract relating to a joint venture, strategic alliance, partnership or similar agreement;
(ii) any Contract that involves annual future expenditures by an Acquired Company of more than $1,000,000 or annual future revenues by an Acquired Company of more than $5,000,000;
(iii) except with respect to indebtedness between or among any Acquired Companies, any Contract relating to (A) indebtedness for borrowed money or evidenced by promissory notes or debt securities, (B) any financial guaranty or (C) any interest rate, currency or other swap, forward, future, collar, put, call, floor, cap, option or other similar Contract, in the case of clause (A) in excess of $250,000 individually;
(iv) any Contract relating to an acquisition, investment, asset purchase, divestiture, merger or similar transaction (A) which an Acquired Company has entered into in the past three years or (B) that has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations on an Acquired Company;
(v) the Real Property Leases;
(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 any class of Company Capital Stock (other than the Company) or any Affiliate of the foregoing (or, to the Knowledge of the Company, any immediate family member of any of the foregoing), on the other hand;
(vii) any Contract that by its terms limits the payment of dividends or other distributions to shareholders by the Company or any Subsidiary of the Company;
(viii) any Contract with a Material Customer or Material Supplier (other than purchase orders or statements of work in the ordinary course of business);
(ix) any Contract pursuant to which any Third Party has licensed or transferred any Intellectual Property to any Acquired Company, which Intellectual Property is incorporated into the Company Product or is otherwise material to the Acquired Companies or the operation of the Acquired Companies’ business, taken as a whole, other than licenses to generally commercially available Software that have an ongoing cost of $500,000 or less in the aggregate per annum;
(x) any Contract (A) under which any Acquired Company has granted or received an exclusive license to any Intellectual Property, (B) under which any Acquired Company has licensed or transferred material Company IP to any Person, other than non-exclusive licenses (including software as a service or “SaaS” licenses) granted in the ordinary course of business in connection with the sale of the Company Products or (C) under which any Acquired Company has delivered, made available to Parent trueavailable, correct and complete copieslicensed, of each Contractor placed into escrow any Software included in the Company IP;
(xi) any Contract with a Governmental Authority or public healthcare establishment or institution, including amendments theretoany clinical research agreement or grant agreement;
(xii) any CBA;
(xiii) any Contract that (A) limits or restricts, in any material respect, the ability of the Acquired Companies to compete in any geographic area or line of business or (B) contains exclusivity, “most favored nation” or similar covenants for the benefit of the counterparty of such Contract;
(xiv) any Contract pursuant to which any Acquired Company has any revenue share or royalty obligations with respect to the sale or license of any Company Products;
(xv) any Contract that (A) is with or results in revenue from transactions processed on a Payment Network, (B) is with any Member Bank, or (C) provides for or pursuant to which a financial institution sponsors or registers any Acquired Company to a Payment Network or obtains banking, custody or payments processing or check preparation services that any Acquired Company provides to its customers;
(xvi) any Contract pursuant to which any Acquired Company has outstanding obligations to perform any material development with respect to any material Company IP for or on behalf of any Third Party;
(xvii) each Contract that is a settlement, conciliation or similar agreement with any Governmental Authority or pursuant to which the Company or its Subsidiaries has or will have any outstanding payment obligations or that otherwise imposes material outstanding obligations after the date of this Agreement; and
(xviii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act). Each Contract required to be listed in this Section 4.10(a), other than this Agreement, is referred to herein as a “Company Subsidiaries is Material Contract.” True and complete copies of each Company Material Contract (including all material amendments thereto, but excluding any purchase orders issued under a party Company Material Contract in the ordinary course of business and that do not substantially or by which it is bound or to which materially modify the terms of any of their respective assets are subjectsuch Company Material Contract), as of the date of this Agreement, that:have been made available by the Company to Parent, or publicly filed in the Company SEC Documents.
(ib) Each Company Material Contract is a partnershipvalid, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research binding 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 enforceable obligation of the Company or one of its Subsidiaries and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to the Enforceability Exceptions. Each Company Material Contract is in full force and effect, except to the extent any Company Subsidiary, Material Contract expires or terminates 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 accordance 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 its terms 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 covenant (A) limiting in any material respect the ability . None of the Company or any of its Subsidiaries has sent or received written notice of any violation or breach of or default (with or without notice or lapse of time or both) under any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation Material Contract or has expressly waived in writing any rights or benefits under any Company Material Contact to which it is a party or any of their respective Subsidiaries) to (x) sell any products its properties or services of or to any other person or assets is subject. Each Acquired Company has in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any all material benefit respects performed all obligations required to be granted performed by it under each Company Material Contract, except, in each case, as would not reasonably be expected to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that ishave, individually or in the aggregate, material to a Company Material Adverse Effect. Since the Company and Balance Sheet Date through the Company Subsidiariesdate of this Agreement, but excluding Incidental Contracts;
(x) is a license or other Contract relating except as would not reasonably be expected to any Intellectual Property Rights thathave, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject no counterparty to any Company Material Contract has notified the Acquired Companies in writing (or, to the Bankruptcy and Equity Exception. The Company has made available Knowledge of the Company, otherwise) that it intends to Parent trueterminate, correct and complete copies of cancel or not renew a Company Material ContractsContract.
Appears in 1 contract
Samples: Merger Agreement (Model N, Inc.)
Company Material Contracts. (ai) Section 3.22(a7I(i) 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 subjectforth, as of the date of this Agreement, that:a list of each of the following contracts, as amended, supplemented or modified, to which the Company or any of its Subsidiaries is a party (or by which it or its assets are otherwise bound), including the names of the counterparties to such contracts and the dates thereof, and, in the case of any such oral or unwritten contracts, a description of the material terms thereof (collectively, the “Company Material Contracts”):
(a) any contract or agreement (including severance and employment agreements) relating to employment with the Company or any of its Subsidiaries which provides for payments in excess of $150,000 per annum;
(b) any contract or agreement with any Governmental Entity;
(c) any employee collective bargaining agreement or contract with any labor union;
(d) any contract or agreement with a Related Person;
(e) any joint venture, partnership or other similar agreement involving co-investment with a third party to which the Company is a party;
(f) any Lease for the Leased Real Property;
(g) any agreement containing a covenant not to compete or other restrictive covenant granted by the Company or any of its Subsidiaries in favor of a third party;
(h) any lease or similar agreement under which (a) the Company or one of its Subsidiaries is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third party or (b) the Company or one of its Subsidiaries is a lessor or sublessor of, or makes available for use by any third party, any tangible personal property owned or leased by the Company or one of its Subsidiaries;
(i) is a partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development any contract or similar arrangement, or provides for or governs agreement involving the formation, creation, operation, management or control sale of such arrangement;
(ii) provides for the creation, incurrence, assumption or guarantee of or otherwise relates to Indebtedness any assets of the Company or any Company Subsidiaryof its Subsidiaries outside of the Ordinary Course of Business, 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 acquisition of any assets of the material properties or assets (including material Owned Company Intellectual Property) of any Person by the Company or any Company Subsidiary;
(iv) provides for of its Subsidiaries outside of the acquisition or disposition Ordinary Course of Business, in any business combination transaction (whether by merger, sale of stock, sale of assets, assets or otherwise) under which obligations 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 party thereto remain outstanding;
(vj) make any investment in, agreement or loan or capital contribution to, any person (other than contract under which the Company or one of its Subsidiaries has borrowed any Company Subsidiary) and money or issued any note, indenture or other than (i) extensions evidence of credit in the ordinary course Indebtedness or guaranteed indebtedness or liabilities of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of businessothers;
(vik) 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or one of its Subsidiaries is a party or by or to which any Company Subsidiary has agreed not to acquire any of their assets are bound or securities of another person, subject under which (Da) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any one of its Subsidiaries is selling products to a third-party customer or (b) the Company Subsidiary or one of its Subsidiaries is providing services to a third-party customer (orsuch customers, after the consummation of the Mergercollectively, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services“Material Customers”);
(ixl) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xiI) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary one of its Subsidiaries is a party or by or to which any of their assets are bound or subject under which (a) the Company or one of its Subsidiaries is purchasing products from a third-party supplier or (b) the Company or one of its Subsidiaries is receiving services from a third-party supplier, in each case which resulted in aggregate payments from the Company or one of its Subsidiaries for the purchase of such products or the receipt of such services in excess of $20,000 during the 52-week period ended on December 31, 2017 or reasonably expected to exceed $20,000 during 52-week period ended on December 31, 2018, and (II) any agreement (each, a “CBAProvider Agreement”) with any Provider (such Providers, collectively, “Material Providers”);
(xvm) is an employment agreement IP Licenses, excluding In-Bound IP Licenses for Off-the-Shelf Software and licenses for Open Source Software; and
(n) any other agreement, contract, lease, license or Contract for the employment instrument, in each case not included in clauses (a) through (m) above or engagement of set forth on any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate other sections of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act)Disclosure Letter, on the other hand, including any Contract pursuant to which the Company or one of its Subsidiaries is a party or by or to which any Company Subsidiary has an obligation of their assets are bound or subject which provides for payments by or to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);one of its Subsidiaries in excess of $20,0000 per annum or $100,000 in the aggregate
(xxii) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party Except as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed disclosed in Section 3.22(a7I(ii) of the Company Disclosure Letter, whether or not set forth in such section of :
(a) the Company Disclosure Letteror one of its Subsidiaries, is referred as applicable, and each other party thereto has performed all material obligations required to in this Agreement as a “be performed by it under the Company Material Contract” Contracts and is not (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without the lapse of time or the giving of notice, or lapse of time, or both, ) in breach of or default under the terms of thereunder and nor has any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, notice or lapse of time or bothtime, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to under any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each material respect;
(b) each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, to the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, its Subsidiaries and each other party thereto; and
(c) neither the Company nor its Subsidiaries has given to, except for such failure that would not have a or received from, any other party to any Company Material Adverse EffectContract, subject any written notice or communication regarding any actual or alleged breach of or default under any Company Material Contract by the Company or any other party to the Bankruptcy and Equity Exception. such Company Material Contract.
(iii) The Company has made available to Parent true, correct Buyer complete and complete accurate (i) copies of each of the Company Material ContractsContracts that is in written form and (ii) descriptions of each Company Material Contract that is not in written form, in each case including any and all amendments and modifications thereof.
Appears in 1 contract
Company Material Contracts. (a1) Section 3.22(a) of the Company Disclosure Letter Except for this Agreement, Schedule H sets forth a true, correct true and complete list, and list of the Company has made available to Parent true, correct and complete copies, of each Contract, including amendments thereto, following Contracts to which the Company or any of the Company its Subsidiaries is a party or by to which it is bound or to which any of their respective assets are subject, as of the date of this Agreement, thatbound:
(i) a. any Contract that is a reasonably likely to require either annual payments to or from the Company and its Subsidiaries of more than $150,000;
b. any partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research or an arrangement for the sharing of profits or proprietary information or other similar agreement or arrangement that is material to the business of the Company or any of its Subsidiaries and development or similar arrangement, or provides for or governs that relates to the formation, creation, operation, management or control of such arrangement;
(ii) provides for any partnership, joint venture, strategic alliance, or sharing of profits or proprietary information material to the creation, incurrence, assumption or guarantee of or otherwise relates to Indebtedness business of the Company or any Company Subsidiary, of its Subsidiaries or 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 which the Company or any Company Subsidiary;
(iv) provides for the acquisition of its Subsidiaries owns more than a five per-cent voting, economic or disposition (whether by merger, sale of stock, sale of assetsother membership or partnership interest, or otherwise) of any interest in valued at more than $150,000 without regard to percentage voting or economic interest;
c. any person or any business or division thereof, or a material portion of the assets of any person, Contract (other than this Agreementsolely among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property owned by the Company, (A) entered into since January 1in either case, 2021 and which involves an asset value whether incurred, assumed, guaranteed or secured by any asset, in excess of $100,000 or 150,000;
d. any Contract that: (BA) pursuant to which limits in 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 respect either the type of business in which the Company or any of its Subsidiaries (or, after the Acquisition Effective Time, the Optionee or any of its Subsidiaries) may engage or the manner or geographic areas in which any of them may so engage in any business; (B) stipulates covenants of any other person not to compete with the Company Subsidiaryor any of its Subsidiaries (or, after the Acquisition Effective Time, the Optionee or any of its Subsidiaries) and other than (i) extensions of credit in the ordinary course any type of business consistent with past practice or in any geographical area; (C) could require the disposition of any material assets or line of business of the Company or any of its Subsidiaries or, after the Acquisition Effective Time, the Optionee or any of its Subsidiaries; or (D) includes "take or pay" requirements or similar provisions obligating a Person to obtain a minimum quantity of goods or services from another Person, except as would not be material to the Company and its Subsidiaries (ii) investments in marketable securities in the ordinary course of businesstaken as a whole);
(vi) provides for the settlement of e. 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 Contract between the Company or any Company Subsidiary including any monitoring of its Subsidiaries, on the one hand, and (A) any current or reporting obligations to any other personformer director or Founder, (B) with respect to which conditions precedent to current or former chairman, chief executive officer, president, secretary, treasurer or any senior vice-president of the settlement have not been satisfied or Company, (C) which materially affects the conduct any Person beneficially owning one percent or more of the Company’s number or the voting power attached to the issued and outstanding Shares, on the other hand, or (D) an affiliate of any Company Subsidiary’s business;
(vii) contains any provision or covenant such Person listed in clause (A) limiting in - (C) above;
f. any material respect Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any Company Subsidiary (orof its Subsidiaries to sell, after the consummation of the Mergertransfer, Parent, the Surviving Corporation pledge or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability otherwise dispose of any person to provide products material assets or services to the Company or businesses;
g. any Company Subsidiary (orContract that contains a put, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” call or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement right pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or or any of their respective Subsidiaries) its Subsidiaries could be required to purchase or sell, as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited toapplicable, any settlement agreement equity interests of any Person or co-existence agreement), but excluding Incidental Contracts;assets that have a fair market value or purchase price of more than $150,000;
(xii) is a Contract between the Company or h. any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment of, or engagement receipt of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) services from any Company Employee providing for the payment of any annual cash base salary or other compensation wage or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member consulting fees (excluding, for the avoidance of doubt, variable compensation) in excess of $150,000;
i. any Company Benefit Plans and governing documents employment or consulting Contract which provides for change in control entitlements, or active retention payments in connection with a change of control in excess of $50,000;
j. any Contract with any independent contractors of the Company or any of its Subsidiaries or other Persons that have provided intellectual property or other proprietary information development services to the Company;
k. any collective bargaining agreement or similar Contract with any labour union, works council, labour organization, economic committee, or other employee representative body applicable to any Company Subsidiary);Employee;
(xx) l. any Contract that contains a change of control provision that modifies the rights of any party to such Contract or requires consent of a party thereto in connection with the transactions contemplated by the Agreement;
m. any Contracts pursuant to which (A) the Company or any provision that requires the purchase of all its Subsidiaries is granted by any other Person, or grants to any other Person, any license or other right to use, or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third partycovenant not to sxx with respect to, or assigns to any Person, or is assigned by any Person, any intellectual property rights (other similar provision (including nonthan shrink wrap agreements for off-cancelable purchase obligationsthe-shelf software), or (B) any provision that grants material guaranteed availability research or development activities are conducted with respect to any of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor of its Subsidiaries products and services or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) any intellectual property rights of the Company Disclosure Letter, whether or not set forth or any of its Subsidiaries; (each such Contract described in such section of the Company Disclosure Letterforegoing clauses (a) through (m), is referred to in this Agreement herein as a “"Company Material Contract” Contract").
(with each such Contract listed under the corresponding clause of Section 3.22(a2) Each of the Company Disclosure Letter to which such Contract Material Contracts is relevant). Neither legal, valid and binding on the Company nor any Company Subsidiary isor its Subsidiaries, with or without notice, or lapse of time, or both, in breach of or default under as the terms of any Company Material Contractcase may be, and, to the knowledge of the Company’s Knowledge, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no each other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation ofthere-to, and is in full force and effect and is enforceable by the Company or any of its Subsidiaries, as applicable, in accordance with respect its terms (subject to bankruptcy, insolvency and other Laws affecting creditors’ rights generally, and to principles of equity), and, except as disclosed in Schedule H hereto (including, but not limited to, all such Material Contracts on Schedule H designated as with a Founder or Founder Related Party), is the product of fair and arms’ length negotiations between each of the parties to such Company Material Contracts.
(3) The Company and each of its Subsidiaries have performed, in all material respects, all respective obligations required to be performed by them to date under the Company Material Contracts of the Company and there is no material default under any such Company Subsidiary that is a party thereto andMaterial Contracts by the Company or any of its Subsidiaries, and to the knowledge of the Company’s Knowledge, each any other party thereto, except for and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material default thereunder by the Company or its Subsidiaries, and to the Company’s Knowledge, any other party thereto.
(4) The Company has not received notice (whether written or oral) that any party to a Company Material Contract of the Company intends to cancel, terminate or otherwise materially modify or not renew its relationship with the Company or any of its Subsidiaries and to the Company’s Knowledge, no such failure that would not have action has been threatened.
(5) No party to a Company Material Adverse EffectContract is entitled to terminate or amend any material term of such Company Material Contract in connection with or as a result of, subject or is otherwise entitled to a payment in connection with the Bankruptcy completion of the transactions contemplated by this Agreement and Equity Exceptionthe Acquisition. The
(6) Complete and correct copies of each Company has Material Contract have been made available to Parent true, correct and complete copies of Company Material Contracts.the Optionee prior to the date hereof.
Appears in 1 contract
Samples: Option Purchase Agreement (Charlotte's Web Holdings, Inc.)
Company Material Contracts. (a) Except for this Agreement, or as set forth on Section 3.22(a4.19(a) of the Company Disclosure Letter sets forth a trueSchedule and any Benefit Plan, correct and complete listas of the date hereof, and no member of the Company has Group is a party to or is bound by any Contract which falls into the following categories:
(i) any Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC under the Securities Act);
(ii) any Contract that materially restricts the ability of any member of the Company Group or, after the Closing, any member of the Bidco Group, any ECP Entity or any of their respective Affiliates to own or construct any renewable electricity generation facility anywhere in the world;
(iii) any Contract creating, incurring, guaranteeing or securing Indebtedness of the Company Group (other than Indebtedness solely between the Company and any of its Subsidiaries or between Subsidiaries of the Company) in excess of $30,000,000;
(iv) any Contract guaranteeing any financial or Contractual obligation made available to Parent true, correct and complete copies, on behalf of each Contract, including amendments thereto, to which any Person other than the Company or any of its Subsidiaries in excess of $30,000,000;
(v) any Contract that requires any member of the Company Subsidiaries Group to make any advance, loan or commitment therefor or provide any credit support for or any capital contribution to, or other investment in, any Person (other than the Company or any Subsidiary of the Company) in excess of $30,000,000;
(vi) any Contract relating to any material Leased Real Property;
(vii) any Contract with or binding upon any member of the Company Group that is a party of the type that is or by which it is bound would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(viii) any settlement, conciliation or similar agreement pursuant to which any member of their respective assets are subjectthe Company Group will be required, as of after the date of this Agreement, that:
(i) is a partnership, joint venture, strategic alliance, collaboration, coto satisfy monetary obligations in excess of $15,000,000 or material non-promotion, profit-sharing, joint research and development or similar arrangement, or provides for or governs the formation, creation, operation, management or control of such arrangementmonetary obligations;
(iiix) provides for the creation, incurrence, assumption or guarantee of or otherwise any Contract that relates to Indebtedness the acquisition, purchase, sale, transfer or other disposition of a business or assets by any member 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, Group (A) entered into since January 1, 2021 and which involves an asset value during the last three (3) years with total consideration of more than $30,000,000 in excess of $100,000 the aggregate or (B) pursuant to which the Company Group has any material earn-outcontinuing indemnification, guarantee, “earnout” or other contingent, deferred or contingent fixed payment or indemnification obligations remain outstandingin excess of $30,000,000 in the aggregate;
(vx) make any investment inContract with respect to any Derivative Products;
(xi) collective bargaining agreement, recognition agreement or loan any other Contract with any trade union, works council or capital contribution toother labor organization affecting any employee of the Company Group, any person (other than any national or sector level collective bargaining or similar agreements; or
(xii) any other Contract not of the type covered by the preceding clauses (ii)-(xi) that provides for payments to or from the Company Group in excess of $50,000,000. Each Contract required to be set forth on Section 4.19(a) of the Company Disclosure Schedule is a “Company Material Contract” and, collectively, the “Company Material Contracts”.
(b) The Company has prior to the date of this Agreement made available to Bidco a true and complete copy of each Company Material Contract (including all amendments, modifications, extensions and renewals thereto and waivers thereunder) or has publicly made available such Company Material Contract in the Electronic Data Gathering, Analysis and Retrieval (XXXXX) database of the SEC at least two (2) Business Days prior to the date hereof, subject to any omission or redactions permitted by Law or SEC rules and regulations.
(c) Except as has not had a Company Subsidiary) and other than Material Adverse Effect, (i) extensions each Company Material Contract and each Government Contract is valid and binding on the member of credit the Company Group party thereto, and to the knowledge of the Company, the other parties thereto, as the case may be, (ii) each Company Material Contract and each Government Contract is in full force and effect (except for expiration thereof in the ordinary course of business consistent in accordance with past practice the terms thereof), and (ii) investments in marketable securities in enforceable against the ordinary course applicable member 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 personGroup, (B) with respect to which conditions precedent and, to the settlement have not been satisfied or (C) which materially affects the conduct knowledge of the Company’s or , the other parties thereto, as the case may be, in accordance with its terms, subject to any Company Subsidiary’s business;
Enforceability Exceptions and (viiiii) contains any provision or covenant (A) limiting in any material respect the ability no member of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) Group that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity thereto or, to the knowledge of the Company, the other parties thereto, is any material subcontract (at any tier) under in breach of, or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubtdefault under, any such Company Government Material Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, that with or without notice, notice or lapse of time or both, both would constitute such a material breach or material default thereunder by such member of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto andGroup or, to the knowledge of the Company, each the other party parties thereto, as applicable, or permit termination, material modification or acceleration by any party thereunder. As of the date hereof, no member of the Company Group has received any written (or, to the knowledge of the Company, oral) notice of termination or cancelation under any Company Material Contract or Government Contract or received any written or, to the knowledge of the Company, oral notice of breach of or any default under any Company Material Contract or any Government Contract which breach or default has not been cured except for such failure that as would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contracts.
Appears in 1 contract
Samples: Transaction Agreement (Atlantica Sustainable Infrastructure PLC)
Company Material Contracts. (a) Section 3.22(aSection 3.18(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 material to the Company and the Company Subsidiaries, taken as a whole, and provides for 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 (other than Indebtedness of the Company to any wholly-owned Company Subsidiary, Indebtedness of any wholly-owned Subsidiary of the Company to the Company or any other wholly-owned Subsidiary fo the Company) in each case, for borrowed moneyan amount in excess of $5,000,000;
(iii) grants any rights of first refusal, rights of first negotiation, exclusivity negotiation 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 PropertyProperty Rights) 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 1September 28, 2021 2019 and which involves an asset value in excess of $100,000 10,000,000 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 litigation and materially affects the conduct of the Company’s or any Company Subsidiary’s businessSubsidiaries’ businesses;
(viivi) is material to the Company and the Company Subsidiaries, taken as a whole, and contains any provision or covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), ) or (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xivvii) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xvviii) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability pursuant to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of which the Company or any Company Subsidiary provides services to a customer and the Company or any of their respective “associates” Company Subsidiary has received, or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), reasonably expects to receive for existing contracted engagements based on the other handCompany’s backlog reports as of October 3, including any 2020, in excess of $10,000,000 in fees during the period beginning on October 4, 2020 and ending on October 2, 2021;
(ix) is a vendor Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, paid in excess of $10,000,000 for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products goods or services from a given third partyduring the period beginning on September 29, 2019 and ended on October 3, 2020 or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary reasonably expects to pay in excess of $10,000,000 for goods and services during the period beginning on October 4, 2020 and ending on October 2, 2021, in either case excluding pass-through payments to be forwarded by the vendors to unrelated third parties and payments to vendors to the extent relating to the Company’s discontinued operations;
(x) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K, other than any Company Benefit Plans and any Contracts described in any of the foregoing clauses of this Section 3.18(a);
(xi) is a party license or other Contract that is material to the Company and the Company Subsidiaries, taken as either lessor a whole, relating to any Intellectual Property Rights granted by any other person to the Company or lesseeany of the Company Subsidiaries, providing including any trademark co-existence agreements, covenants not to sxx, or Contracts whereby any other person is developing or has developed any Intellectual Property for either (A) annual payments after the date hereof Company or the Company Subsidiaries, but excluding licenses granted by third parties in the ordinary course of $50,000 business and “click-wrap,” “shrink-wrap,” or more or (B) aggregate payments after the date hereof of $100,000 or moreother generally available commercial licenses; or
(xxiiixii) creates is a license or grants other Contract that is material to the Company and the Company Subsidiaries, taken as a material Lienwhole, relating to any Intellectual Property Rights granted by the Company or any of the Company Subsidiaries to any other than Permitted Liens and person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property for any other than Contracts person, but excluding licenses granted to third parties in the ordinary course of business, agreements with customers distributors entered into in the ordinary course of business consistent with past practicebusiness, and “click-wrap,” “shrink-wrap,” or other generally available commercial licenses offered by Company or a Company Subsidiary to third parties.
(b) Each Contract required to be listed in Section 3.22(aSection 3.18(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(aSection 3.18(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither , where such breach or default, individually or together with other such breaches or defaults, would reasonably be expected to have a material adverse effect on the Company and the Company Subsidiaries, taken as a whole, neither has the Company nor any Company Subsidiary has received any notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would reasonably be expected to have a material adverse effect on the Company Material Adverse Effectand the Company Subsidiaries, taken as a whole. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that failures as would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contracts.
Appears in 1 contract
Samples: Merger Agreement (MTS Systems Corp)
Company Material Contracts. (a) All Contracts, including amendments thereto, required to be filed with the SEC as an exhibit to any Company SEC Documents filed on or after January 1, 2023 pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts, to the extent publicly available, shall be deemed to have been made available to Parent.
(b) Section 3.22(a4.10(b) of the Company Disclosure Letter sets forth forth, as of the date hereof, a true, correct and complete list, and the Company has made available to Parent true, correct and complete copies, list of each Contract, including amendments thereto, Contract to which the an Acquired Company or any of the Company Subsidiaries is a party or by which it an Acquired Company or any of its properties or assets are bound as of the date hereof (excluding any Company Benefit Plan and any Contract set forth under Section 4.10(a) above), and which falls within any of the following categories:
(i) any Contract that involves a joint venture entity, limited liability company or legal partnership or strategic alliance with a Third Party;
(ii) any Contract that involves (A) annual future expenditures or receipts by an Acquired Company of more than $1,000,000 or (B) annual aggregate payments by, or other consideration from, any Acquired Companies of more than $2,500,000, and, in each case of (A) and (B), is bound not terminable by an Acquired Company for convenience without material penalty;
(iii) any Contract containing any covenant or other provision (A) prohibiting an Acquired Company or its Affiliates from engaging with any Person; (B) containing and limiting the right of an Acquired Company or its Affiliates pursuant to any “most favored nation” or “exclusivity” provisions; (C) limiting the right of an Acquired Company or its Affiliates to engage in any line of business or to compete with any Person in any line of business; (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 or to solicit customers or other Persons, in each case of clauses (A), (B) and (C), other than any Contracts that may be cancelled without material liability to an Acquired Company upon notice of ninety (90) days or less;
(iv) any Contract relating to any Indebtedness obligation of the Acquired Companies (A) with an outstanding principal amount, together with the aggregate amount of all undrawn commitments related thereto, as of the date hereof greater than $5,000,000, (B) secured by the Real Property or (C) relating to any interest rate caps, interest rate collars or hedging (including interest rates, currency, commodities or derivatives);
(v) 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;
(vi) any Contract that is (A) a Company Lease or (B) a Construction Contract;
(vii) any Contract pursuant to which any Acquired Company has granted to any Person or has been granted a license (or other rights in or to use), with respect to any material Intellectual Property Rights, other than (A) an inbound non-exclusive license of their respective commercially available software (including click-wrap, shrink-wrap or off-the-shelf software) or other commercially available technology with annual fees of less than $1,000,000, (B) a license of Company IP granted on a non-exclusive basis (or exclusive only in respect of immaterial scope) in the ordinary course of business or (C) any other Contract in which grants of rights to use Intellectual Property Rights are non-exclusive, incidental and not material to the performance under such Contract;
(viii) any Contract between or among the Acquired Companies, 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;
(ix) any Contract that by its terms limits the payment of dividends or other distributions to stockholders by the Company or any Subsidiary of the Company;
(x) any Contract that grants any buy/sell, put option, call option, redemption right, option to purchase, a marketing right, a forced sale, tag or drag right or a right of first offer, right of first refusal or right that is similar to any of the foregoing, pursuant to the terms of which any Acquired Company could be required to purchase or sell the equity interests or assets of any Person or any real property or any other material assets, rights or properties of the Acquired Companies or any Minority Equity Joint Ventures (any of the foregoing, a “Transfer Right”);
(xi) any Contract that is an agreement in settlement of a dispute that imposes obligations on the Acquired Companies after the date hereof beyond the obligation to comply with Applicable Law, other than any settlement that provides solely for the payment of less than $1,000,000 in cash (net of any amount covered by insurance or indemnification that is reasonably expected to be received by the Company or any of its Subsidiaries);
(xii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act, other than those agreements and arrangements described in Item 601(b)(10)(iii) of Regulation S-K of the Securities Act);
(xiii) any Contract between an Acquired Company and Apartment Investment and Management Company or any of its Subsidiaries or Affiliates, in each case, not terminable without penalty by the Company with ninety (90) days’ prior notice;
(xiv) any Contract containing covenants expressly limiting, in any material respect, the ability of the Acquired Companies to sell, transfer, pledge or otherwise dispose of any material assets or business of the Acquired Companies;
(xv) any Contract that provides for a right of any Person (other than the Acquired Companies) to receive fees or receive a profits interest in, invest, join or partner in (whether characterized as a contingent fee, profits interest, equity interest or otherwise), or have the right to any of the foregoing in any proposed or anticipated investment opportunity, joint venture or partnership with respect to any current or future real property in which any Acquired Company has or will have a material interest, including those transactions or properties identified, sourced, produced or developed by such Person (such Contracts, collectively, the “Participation Agreements”);
(xvi) any Contract pursuant to which any Acquired Company manages, is a development manager of, or the leasing agent of any real properties of a Third Party under which the aggregate annual payments or other consideration to any Acquired Company thereunder is more than $500,000;
(xvii) any Contract that requires the Acquired Companies to make any investment (in the form of a loan, capital contribution, preferred equity investment or preferred equity investment or similar transaction) in, or purchase or sell, as applicable, equity interests of, any Person or assets, including through a pending purchase or sale of assets, merger, consolidation or similar business combination transaction, that (together with all of the interests, assets and properties subject to such requirement in such Contract) have a fair market value or purchase price in excess of $1,500,000;
(xviii) any Contract that evidences a loan to any Person (other than a wholly owned Subsidiary of the Company) by any of the Acquired Companies in an amount in excess of $1,000,000;
(xix) any Contract that provides for the acquisition, disposition, assignment, transfer or ground leasing (whether by merger, purchase or sale of assets or stock or otherwise) of any real property (including any Company Property or Real Property to the extent such Contract was executed on or after January 1, 2021), which Contract is pending or has outstanding obligations as of the date of this Agreement that are subjectreasonably likely to be in excess of $3,000,000; and
(xx) any Contract that is required to be described pursuant to Item 404 of Regulation S-K promulgated under the Securities Act or is otherwise a Related Person Agreement. Each Contract of the type described in Section 4.10(a) and Section 4.10(b), other than this Agreement, is referred to herein as a “Company Material Contract.” True, correct and complete copies of each Company Material Contract, 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted made available by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(bc) Each Contract required to be listed in Except as set forth on Section 3.22(a4.10(c) of the Company Disclosure Letter, whether or not set forth in such section (i) each Company Material Contract is a valid, binding and enforceable obligation of an Acquired Company and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to the Enforceability Exceptions; (ii) each Company Disclosure LetterMaterial Contract is in full force and effect, is referred except to the extent any Company Material Contract expires or terminates in this Agreement as a “accordance with its terms; (iii) none of the Acquired Companies has received written notice of any violation or default under any Company Material Contract” ; (with iv) each such Contract listed under Acquired Company and, to the corresponding clause of Section 3.22(a) Knowledge of the Company, each other party thereto, has performed all obligations required to be performed by it under each Company Disclosure Letter to which such Material Contract and is relevant). Neither the Company nor any Company Subsidiary is, with not in breach or without noticeviolation of, or lapse of timedefault under, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, and no event or condition has occurred that, with or without notice, notice or lapse of time or both, would constitute a material violation, breach or material default thereunder by the Company or under any Company Subsidiary. Neither Material Contract; and (v) there are no disputes pending or, to the Company nor any Company Subsidiary has received notice of such an event. To the knowledge Knowledge of the Company, no other party threatened with respect to any Company Material Contract is Contract, in breach of or default under the terms of any Company Material Contract where such breach or defaulteach case except as would not reasonably be expected to have, individually or together with other such breaches or defaultsin the aggregate, would have a Company Material Adverse Effect. Each As of the date of this Agreement, no Acquired Company has received written notice from any other party to a Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each such other party theretointends to terminate, except for not renew or renegotiate in any material respects the terms of any such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material ContractsContract.
Appears in 1 contract
Company Material Contracts. (a) Section 3.22(a3.17(a) of the Company Disclosure Letter sets forth a true, correct and complete list, and list of the following Company has made available to Parent true, correct and complete copies, of each Contract, including amendments thereto, Material Contracts to which the Company or any of the Company its Subsidiaries is a party or by which it is bound or to which any of their respective assets are subjectis, as of the date of this Agreement, thata party:
(i) any Contract pursuant to which the Company or any of its Subsidiaries leases or subleases real property to or from any Person;
(ii) any Contract that is reasonably likely to require, during the remaining term of such Contract, annual payments to the Company and its Subsidiaries of more than $1,000,000;
(iii) any Contract that cannot be terminated by the Company or its Subsidiaries on less than 90 days’ notice (without a monetary penalty) and is reasonably likely to require, during the remaining term of such Contract, annual payments from the Company and its Subsidiaries of more than $750,000;
(iv) any partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development alliance or other similar arrangement, agreement or provides for or governs arrangement relating to the formation, creation, operation, management or control of such arrangement;
(ii) provides for any partnership, joint venture or strategic alliance other than any that are individually and in the creationaggregate immaterial to the business, incurrence, assumption or guarantee financing condition and results of or otherwise relates to Indebtedness operations 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 and its Subsidiaries taken as 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 outstandingwhole;
(v) make any investment in, Contract entered into in connection with an acquisition or loan or capital contribution to, any person (other than disposition by the Company or its Subsidiaries since December 31, 2017 involving consideration in excess of $1,000,000 of any Company SubsidiaryPerson or other business organization, division or business of any Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person or by any other manner);
(vi) and any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $500,000, other than (i) extensions of credit sales or purchases in the ordinary course of business consistent with past practice practices and (ii) investments in marketable securities in the ordinary course sales 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 businessobsolete equipment;
(vii) contains any provision Contract (other than solely among direct or covenant indirect wholly owned Subsidiaries of the Company) relating to indebtedness for borrowed money in excess of $250,000;
(viii) any non-competition Contract or other Contract that (A) limiting purports to limit in any material respect either the ability type of business in which the Company or any Company Subsidiary its Subsidiaries (or, after the consummation of Effective Time, TSIA or its Subsidiaries) may engage or the Merger, Parent, the Surviving Corporation manner or locations in which any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or them may so engage in any geographic region business, (B) could require the disposition of any material assets or subject line of business of the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (its Subsidiaries or, after the consummation of the MergerEffective Time, Parent, the Surviving Corporation TSIA or any of their respective its Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant grants “most favored nation” status that, following the Merger, would apply to which TSIA and its Subsidiaries, including the Company and its Subsidiaries or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, prohibits or material right be lost by limits the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom rights of the Company or any of the Company its Subsidiaries to make, sell or distribute any products or services, or use, assert, enforcetransfer or distribute, or otherwise exploit enforce any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited of their rights with respect to, any settlement agreement or co-existence agreement), but excluding Incidental Contractsof their material assets;
(xiiix) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any of its Subsidiaries grants or receives any license, covenant not to xxx, or other right to or from a third party under any material Company Subsidiary has an obligation Intellectual Property or Intellectual Property Rights material to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents businesses of the Company or any and its Subsidiaries (other than (A) non-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms; (B) non-exclusive licenses to customers under Company SubsidiaryIntellectual Property granted in the ordinary course of business; and (C) non-exclusive licenses to application programming interfaces that have been granted to business partners in the ordinary course of business on a form that has been provided to TSIA);
(xx) contains (Ax) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) Contract pursuant to which the Company or any of its Subsidiaries has agreed to provide any third party with access to source code for any material Software included in the Company Subsidiary Intellectual Property, or to provide for such source code to be placed in escrow or a similar arrangement for the benefit of a third party (including upon the occurrence of specified events);
(xi) any Contract primarily for data processing or primarily related to privacy and data protection, including any Contract primarily directed to the collection, use, disclosure, storage, transfer or disposal of Personal Information, in each case, which is material to the businesses of the Company and its Subsidiaries, taken as a party as either lessor whole;
(xii) any Contract between the Company or lesseeany of its Subsidiaries, providing for either (A) annual payments after on the date hereof one hand, and any director or officer of $50,000 the Company or any Person beneficially owning 5% or more of the outstanding shares of Company Common Stock or any of their respective Affiliates, on the other hand;
(Bxiii) aggregate any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests or assets of any Person reasonably likely to result in payments after the date hereof with a value in excess of $100,000 or more; orin any 12-month period;
(xxiiixiv) creates any letter of intent or grants other material Contract with a material Lien, Company Top Supplier or Company Top Customer; and
(xv) any other than Permitted Liens and other than Contracts with customers entered into Contract not made in the ordinary course of business consistent with past practiceand not disclosed pursuant to any other clause under this Section 3.17 and expected to result in revenue in excess of $1,000,000 or require expenditures in excess of $750,000 in the calendar year ending December 31, 2021 or any subsequent calendar year (each Contract constituting any of the foregoing types of Contract described in clauses (i) – (xiii) above, and including all amendments, exhibits and schedules to each such Contract, a “Company Material Contract”).
(b) Each Contract required to be listed in Section 3.22(a) A copy of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “each Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter has been made available to which such Contract is relevant)TSIA. Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of Except for any Company Material ContractContract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, each Company Material Contract is valid and binding on the Company or its Subsidiaries, as applicable, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, except for such failure that as would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There is no default under any such Contracts by the Company or its Subsidiaries, subject or, to the Bankruptcy Knowledge of the Company, any other party thereto, and Equity Exception. The no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company has made available or its Subsidiaries, or, to Parent truethe Knowledge of the Company, correct and complete copies of Company any other party thereto, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Material ContractsAdverse Effect.
Appears in 1 contract
Samples: Merger Agreement (TS Innovation Acquisitions Corp.)
Company Material Contracts. (a) As of the date hereof, except as disclosed in Section 3.22(a) 2.10 of the Company Disclosure Letter sets forth Letter, neither the Company nor any of its Subsidiaries is a true, correct and complete listparty to or bound by, and the Company has made available none of their respective assets are subject to, any Contract:
(i) (x) relating to Parent true, correct and complete copies, Indebtedness or (y) that imposes any Lien (other than Permitted Liens) with respect to any material assets or properties 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 arrangementits Subsidiaries;
(ii) provides for the creationinvolving any joint venture, incurrencepartnership, assumption limited liability company or guarantee of other similar agreements or otherwise relates to Indebtedness of the Company or any Company Subsidiary, in each case, for borrowed moneyarrangements;
(iii) grants any rights of first refusal, rights of first negotiation, exclusivity or other similar rights or options to any person with respect relating to the sale acquisition, lease, sale, license, transfer or disposition of any business, capital stock or material assets of the material properties or assets (including material Owned Company Intellectual Property) Company, any of the Company its Subsidiaries or any Company Subsidiary;
(iv) provides for the acquisition third Person or disposition any material real property (whether by merger, sale of stock, sale of assets, assets or otherwise) ), including any agreement that provides an option to acquire, lease, sell, license, transfer or dispose 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, foregoing;
(iv) that (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 covenant (A) limiting restricts in any material respect the ability conduct of business by the Company or any of its Subsidiaries or materially limits the freedom of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) its Subsidiaries to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person Person or in any geographic area;
(viii) involves sole-source area or single-source suppliers during any period of material tangible products time that has not expired or services (including any that would so limit the freedom of the Company’s products Buyer or services);
(ix) is a license its Affiliates or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of its Subsidiaries after the Closing or (B) contains exclusivity obligations or exclusivity restrictions binding on the Company or any of its Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and Station(s) to which such Contract is applicable, or that would be binding on Buyer or any of its Affiliates after the Company Subsidiaries and granted Closing;
(v) with total annual payments by the Company or any of its Subsidiaries of more than $100,000 or under which the Company and its Subsidiaries made payments of more than $100,000 during the 12-month period ending prior to any other personMay 31, including 2016, excluding, in each case, any Contracts whereby the that are Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental ContractsBenefit Plans;
(xivi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to outside the knowledge ordinary course of the Company, is any material subcontract business (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, includingand, for the avoidance of doubt, excluding for the purposes of this subsection any Company Government Contract or Company Government Bid or (Badvertising Contract) that provides for aggregate payments to the knowledge Company or its Subsidiaries over the remaining term of the Company, is financed by any Governmental Entity and subject agreement of more than $100,000 or under which payments of more than $100,000 were made to the rules and regulations of any Governmental Entity concerning procurementCompany or its Subsidiaries during the 12-month period ending prior to May 31, 2016;
(xviiivii) relates to with any stockholders’, investor rights, registration rights, tax receivables current or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any former officer, director director, employee or affiliate other individual service provider of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains its Subsidiaries (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements providing for products or services from a given third party, or any other similar provision annual compensation (including non-cancelable purchase obligations), (Bbonuses and commissions) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof in excess of $50,000 or more 60,000, or (B) aggregate providing for severance, change in control, termination, retention or similar payments after or that may not be terminated by giving notice of 30 days or less, without cost or penalty, in each case, for which the date hereof of $100,000 or more; orCompany has ongoing obligations thereunder;
(xxiiiviii) creates or grants relating to any network affiliation arrangement that is material to the Company Station(s) to which such Contract is applicable;
(ix) for programming (including syndicated content from a third party) that is material Liento the Company Station(s) to which such Contract is applicable;
(x) for the sale of airtime, other than Permitted Liens and other than Contracts with customers those entered into in the ordinary course of business consistent with past practice;
(xi) relating to any interest rate, derivatives or hedging transaction;
(xii) relating to any joint sales agreements, time brokerage agreements, local marketing agreements, or similar arrangement;
(xiii) relating to any trade, barter, or similar arrangement that is material to the Company Station(s) to which such Contract is applicable;
(xiv) under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries or (B) the Company or any of its Subsidiaries has directly or indirectly guaranteed any liabilities or obligations of any other Person (in each case including any “take-or-pay” or keepwell agreement but excluding endorsements for the purpose of collection in the ordinary course of business consistent with past practice);
(xv) that prohibits the payment of dividends or distributions in respect of the capital stock or other equity interests of the Company or any of its Subsidiaries, or prohibits the pledging of the capital stock of the Company or any of its Subsidiaries;
(xvi) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price in excess of $50,000;
(xvii) that provides for indemnification by the Company or any of its Subsidiaries of any Person, except for any such Contract that is entered into in the ordinary course of business consistent with past practice;
(xviii) for any remaining capital expenditure in excess of $75,000, other than any capital expenditures to be made pursuant to the 2016 annual budget;
(xix) for the lease or servicing of hardware and other technology that are IT Systems (except for Software) that involve payments in excess of $50,000 over a twelve month period;
(xx) for the license to the Company or any of its Subsidiaries of (A) any Intellectual Property (other than Software) that is material to the business of the Company or any of the Company Stations (including without limitation any Contract with a living natural Person whose name and/or likeness are material to the business of the Company or any of the Company Stations) and (B) any Software, other than (1) Contracts for commercial widely available off-the-shelf Software with annual license fees of less than $50,000 or (2) standard commercial service offerings that are generally commercially available on standard terms with annual or individual service fees of less than $50,000;
(xxi) that is a license of any Owned Intellectual Property by the Company or any Subsidiaries to a third party, but excluding any (A) marketing Contracts entered into in the ordinary course of business consistent with past practice that grant a non-exclusive right to use or practice Owned Intellectual Property, provided such right is incidental to such Contract and (B) Contracts in the form of nonexclusive end user terms of service (copies of the forms of which have been provided to Buyer) entered into by end users of Owned Intellectual Property in the ordinary course of business consistent with past practice;
(xxii) that contains any standstill or similar agreement pursuant to which one party has agreed not to acquire assets or securities of another Person, except for any such Contract that is a confidentiality, non-disclosure or similar type of agreement;
(xxiii) which is a Lease;
(xxiv) that provides the Company or any of its Subsidiaries with national advertising sales representation that is material to the market cluster of Company Stations to which such Contract is applicable; or
(xxv) with any labor union or labor organization, or collective bargaining agreement, applicable to employees of the Company or any of its Subsidiaries.
(b) Each Contract disclosed (or required to be listed disclosed) in Section 3.22(a) of the Company Disclosure LetterLetter pursuant to this Section 2.10 (each, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a”) is a valid and binding agreement of the Company Disclosure Letter to which such Contract is relevant). Neither or one of its Subsidiaries, as the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contractcase may be, and, to the knowledge Knowledge of the Company, of the other parties thereto (subject to the effects of applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium, receivership or similar Laws relating to or affecting creditors’ rights generally and by general principles of equity (whether considered at law or in equity)), and is in full force and effect and enforceable in accordance with its terms. None of the Company, any Subsidiary of the Company or, to the Knowledge of the Company, any other party thereto is in default or breach in any material respect under (or is alleged to be in default or breach in any material respect under) the terms of, or, as of the date hereof, has provided or received any written notice of any intention to terminate, any such Company Material Contract. To the Knowledge of the Company, no event or circumstance has occurred that, with or without notice, notice or lapse of time or both, would (i) constitute a material breach or an event of material default thereunder by or result in a termination thereof or (ii) cause or permit the Company acceleration of or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice other changes of such an event. To the knowledge of the Company, no other party or to any Company Material Contract is in breach of material right or default under obligation or the terms loss of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effectmaterial benefit thereunder. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent A true, correct and complete copies copy of each Company Material ContractsContract has been previously made available to the Buyer Parties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Beasley Broadcast Group Inc)
Company Material Contracts. (a) Section 3.22(a4.09(a) of the Company Disclosure Letter sets forth forth, as of the date hereof, a true, correct true and complete list, and the Company has made available to Parent true, correct and complete copies, list of each ContractContract (excluding any Plans, including amendments theretopurchase orders, work orders and statements of work) which are in effect on the date hereof and to which the any Acquired Company or any of the Company Subsidiaries is a party or by which any of the assets or properties of any Acquired Company are bound, and which falls within any of the following categories:
(i) any Contract relating to the formation, operation, management or control of a joint venture, equity partnership, or other similar Contract, other than any Contract solely between the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries;
(ii) any Contract with any (A) Material Vendor (or any other vendor or supplier to which the Company has (or has had) payment obligations in excess of $15,000,000 during the financial year ended December 31, 2022) or (B) Material Customer;
(iii) except with respect to indebtedness between or among the Company and its Subsidiaries, any Contract relating to (A) Indebtedness for borrowed money or (B) any financial guaranty, in each case, of clauses (A) and (B) in excess of $5,000,000 individually;
(iv) any Contract relating to an acquisition, divestiture, merger or similar transaction (A) that has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations on an Acquired Company pursuant to which an Acquired Company reasonably expects that it is bound required to pay total consideration in excess of $5,000,000 or (B) pursuant to which any other Person has the right to acquire any assets of their respective assets are subjectan Acquired Company after the date of this Agreement with a fair market value or purchase price of more than $3,000,000;
(v) any Lease that provides for annual base rental payments in excess of $1,000,000 or is otherwise material to the operations of any of the Acquired Companies;
(vi) (A) any Contract between or among the 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 any class of Company Capital Stock (other than the Company) or any Affiliate of the foregoing, on the other hand and (B) any Contract between an Acquired Company, on the one hand, and any of its Affiliates, on the other hand, other than any Contract solely between or among the Company and/or its wholly owned Subsidiaries;
(vii) any collective bargaining agreement or other Contract with a union, works council, labor organization, or other employee representative (each, a “Labor Agreement”);
(viii) any Contract that is a settlement, conciliation or similar agreement (A) with any Governmental Authority or (B) pursuant to which any Acquired Company has outstanding payment obligations in excess of $1,000,000 or that otherwise imposes continuing material obligations upon the operation of any of the Acquired Companies;
(ix) any Contract that by its terms limits the payment of dividends or other distributions to stockholders by the Company or any Subsidiary of the Company;
(x) any Contract with a department or agency of the U.S. federal government, including any grant agreement, subaward or subcontract;
(xi) any voting, registration rights, stockholders, investors rights or similar agreement with respect to the equity interests of any Acquired Company;
(xii) any Contract that obligates an Acquired Company to make a loan or capital contribution to, or investment in, any Person in excess of $2,000,000 over any twelve (12)-month period, other than (A) accounts receivable from customers to the extent consistent with payment provisions under the applicable Contract with such customer or (B) loans to the Company or any of its Subsidiaries;
(xiii) any Contract material to the business of the Acquired Companies (taken as a whole) and pursuant to which any Acquired Company (A) receives any license, covenant not to sue, option, or similar right from a Third Party in or to Intellectual Property Rights (other than non-exclusive licenses or rights for commercially available, off-the-shelf software with an annual fee or replacement value of less than $5,000,000) or (B) grants any license, covenant not to sue, or other rights under any Company IP other than non-exclusive licenses granted in the ordinary course of business and exclusive licenses granted in the ordinary course of business that do not restrict an Acquired Company’s use or enforcement of Company IP in a manner that would be material to the business of the Acquired Companies (taken as a whole); and
(xiv) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC). Each Contract of the type described in this Section 4.09(a), other than this Agreement, is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract, as of the date of this Agreement, that:have been made available by the Company to Parent, or publicly filed in the Company SEC Documents.
(ib) 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 As of the Company or any Company Subsidiarydate of this Agreement, 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 Propertyexcept as set forth on Section 4.09(b) of the Company or any Company Subsidiary;
(iv) provides for the acquisition or disposition (whether by mergerDisclosure Letter, 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 each Company Material Contract is a valid, binding and enforceable obligation of credit an Acquired Company and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to the ordinary course of business consistent with past practice and Enforceability Exceptions; (ii) investments each Company Material Contract is in marketable securities full force and effect, except to the extent any Company Material Contract expires or terminates in accordance with its terms in the ordinary course of business;
; (viiii) provides for the settlement no Acquired Company has received written notice of any Proceeding (A) which (x) will involve payment obligations after the date hereof in excess of $50,000 violation or (y) imposes any continuing material non-monetary obligations on the Company or default under any Company Subsidiary including Material Contract; (iv) no Acquired Company has waived 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 material rights under any Company Subsidiary’s business;
Material Contract; and (viiv) contains any provision or covenant (A) limiting in any material respect the ability of the each Acquired Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit performed all obligations required to be granted performed by it under each Company Material Contract, except, in each case, as has not had, and would not reasonably be expected to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that ishave, individually or in the aggregate, material to the a Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating Material Adverse Effect. No party to any Intellectual Property Rights thatCompany Material Contract has given any Acquired Company (A) written notice of its intention to cancel or terminate any Company Material Contract or (B) written notice of its intention to change the scope of rights under or to fail to renew any Company Material Contract, except, in each case, as would not have, or would not reasonably be expected to have, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of.
(c) All Contracts, and is in full force and effect with respect toincluding amendments thereto, required to be filed as an exhibit to any report of the Company and any Company Subsidiary that is a party thereto filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed, and, to the knowledge as of the Companydate hereof, each other party thereto, except for no such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company Contract has made available to Parent true, correct and complete copies of Company Material Contractsbeen amended or modified.
Appears in 1 contract
Company Material Contracts. (a) Section 3.22(a4.09(a) of the Company Disclosure Letter sets forth forth, as of the date hereof, a true, correct true and complete list, and the Company has made available to Parent true, correct and complete copies, list of each Contract, excluding any Plans that are set forth on Section 4.16(a) of the Company Disclosure Letter or not required to be scheduled thereon, to which an Acquired Company is a party, and which falls within any of the following categories:
(i) any joint venture, strategic alliance, partnership or similar agreement that is material to the operation of the Acquired Companies, taken as a whole;
(ii) any Contract that involves annual future expenditures or receipts by an Acquired Company of more than $5,000,000;
(iii) except with respect to indebtedness between or among any Acquired Companies, any Contract relating to (A) indebtedness for borrowed money or evidenced by promissory notes or debt securities, (B) any financial guaranty or (c) any interest rate, currency or other swap, forward, future, collar, put, call, floor, cap, option or other similar Contract, in each case of clauses (A) and (B) in excess of $5,000,000 individually;
(iv) any Contract relating to an acquisition, investment, asset purchase, divestiture, merger or similar transaction (A) which the Company has entered into in the past three years or (B) 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 the 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 any class of Company Capital Stock (other than the Company) or any Affiliate of the foregoing (or, to the Knowledge of the Company, any immediate family member of any of the foregoing), on the other hand;
(vii) any Contract that by its terms limits the payment of dividends or other distributions to shareholders by the Company or any Subsidiary of the Company;
(viii) any Contract with a Material Customer or Material Supplier;
(ix) any material Contract (A) under which any Acquired Company grants any license or other right to any Person with respect to material Company IP (other than non-exclusive licenses granted to customers or service providers of any Acquired Company in the ordinary course), or receives any license or other right from any Person with respect to any material Intellectual Property Right (other than non-exclusive licenses received by any Acquired Company with respect to commercially available, off-the-shelf Software or Contracts with employees and contractors of any Acquired Company in the ordinary course under which any Acquired Company receives ownership of Intellectual Property Rights), or (B) otherwise affecting in any material respect any Acquired Company’s ability to enforce, own, register, license, use, disclose, transfer or otherwise exploit any material Company IP in any material respect (including amendments theretoany material covenant not to xxx, or co-existence or settlement agreement with respect to Company IP);
(x) each Contract that is a settlement, conciliation or similar agreement with any Governmental Authority or pursuant to which the Company or its Subsidiaries will have any material outstanding obligation after the date of this Agreement; and
(xi) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act). Each Contract of the type described in this Section 4.09(a), other than this Agreement, is referred to herein as a “Company Subsidiaries is Material Contract.” True and complete copies of each Company Material Contract (including all material amendments thereto, but excluding any purchase orders issued under a party or by which it is bound or to which any Company Material Contract in the ordinary course of their respective assets are subjectbusiness), as of the date of this Agreement, that:have been made available by the Company to Parent, or publicly filed with the SEC.
(b) Except as set forth on Section 4.09(b) of the Company Disclosure Letter, (i) each Company Material Contract is a partnershipvalid, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research binding 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 enforceable obligation of the Company or any Company Subsidiaryone of its Subsidiaries and, to the Knowledge of the Company, of the other party or parties thereto, in each caseaccordance with its terms, 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 subject 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 Enforceability Exceptions; (ii) investments each Company Material Contract is in marketable securities full force and effect, except to the extent any Company Material Contract expires or terminates in accordance with its terms in the ordinary course of business;
; (viiii) 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 covenant (A) limiting in any material respect the ability none of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation its Subsidiaries has received written notice of any violation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or default under any Company Subsidiary to exclusivity obligations), Material Contract; and (yiv) engage each Acquired Company has in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any all material benefit respects performed all obligations required to be granted performed by it under each Company Material Contract, except, in each case, as would not reasonably be expected to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that ishave, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Since the Company Balance Sheet Date through the date of this Agreement, no counterparty to a Company Material Contract is a valid and binding obligation of, and is has notified the Acquired Companies in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto andwriting (or, to the knowledge Knowledge of the Company, each other party thereto, except for such failure otherwise) that would it intends to terminate or not have renew a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material ContractsContract.
Appears in 1 contract
Company Material Contracts. (a) Except as set forth in Section 3.22(a3.19(a) of the Company Seller Disclosure Letter sets forth a trueSchedules, correct and complete list, and neither the Company has made available to Parent true, correct and complete copies, of each Contract, including amendments thereto, to which the Company or nor any of the Company its Subsidiaries is a party to or by which it is bound or to which by any of their respective assets are subject, as Contract of the date following nature (such Contracts as are required to be set forth in Section 3.19(a) of this Agreement, that:the Seller Disclosure Schedules being “Company Material Contracts”):
(i) is a partnershipany broker, joint venturedistributor, strategic alliancedealer, collaborationmanufacturer’s representative, co-franchise, agency, continuing sales or purchase, sales promotion, profit-sharingmarket research, joint research and development marketing, consulting or similar arrangement, or provides for or governs the formation, creation, operation, management or control of such arrangementadvertising Contract;
(ii) provides for the creationany loan agreement, incurrenceindenture, assumption note, bond, debenture or guarantee of any other Contract evidencing Indebtedness or otherwise relates a lien to Indebtedness any Person or any commitment to provide any of the Company foregoing, or any Company Subsidiaryagreement of guaranty, indemnification or other similar commitment with respect to the liabilities of any other Person, except any such Contract with an aggregate outstanding principal amount not exceeding $250,000 individually or in each case, for borrowed moneythe aggregate and that may be prepaid on not more than 30 days’ notice without the payment of any penalty;
(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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary of its Subsidiaries has an provided funds to or made any loan, capital contribution or other investment in, or assumed any liability or obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubtof, any Person, including take-or-pay Contracts or keepwell agreements;
(iv) any Contract with any Governmental Authority;
(A) any Contract with any Related Party of Seller, the Company Benefit Plans or any of the Company’s Subsidiaries, (B) any Contract from which any Related Party of Seller or the Company or any of the Company’s Subsidiaries derives any economic or financial benefit and governing documents (C) any Contract to which any Related Party of Seller or the Company or any of the Company’s Subsidiaries is a party from which the Company derives any economic or financial benefit;
(vi) any employment or consulting Contract, other than Contracts for employment covered in subparagraph (v), that involves an aggregate future or potential liability in excess of $100,000;
(vii) any Contract that limits, or purports to limit, the ability of the Company or any of its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Buyer, or any of its Subsidiaries) to compete in any line of business or with any Person or in any geographic area or during any period of time, or that restricts the right of the Company Subsidiary)and its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Buyer, or any of its Subsidiaries) to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third person “most favored nation” status or any type of special discount rights;
(xxviii) contains any Contract pursuant to which the Company or any of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company or a Subsidiary thereof), (A) any provision real property or (B) any tangible personal property and, in the case of clause (B), that requires involves an aggregate future or potential liability or receivable, as the case may be, in excess of $250,000;
(ix) any Contract for the sale or purchase of any real property, tangible personal property or services in an amount in excess of $250,000;
(x) any Contract providing for indemnification to or from any Person with respect to liabilities relating to any current or former business of the Company, any of its Subsidiaries or any predecessor Person;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of $250,000;
(A) any Contract pursuant to which the Company or any of its Subsidiaries grants or is granted a license of any Intellectual Property, other than (1) non-exclusive licenses granted to customers in the ordinary course of business and (2) shrinkwrap, clickwrap, or other similar licenses under which commercially available “off-the-shelf” software is licensed to the Company or any of its Subsidiaries; and (B) any covenant not to xxx, co-existence, or other agreement relating to Intellectual Property that is material to the Company’s or any of its Subsidiaries’ businesses;
(xiii) any joint venture or partnership, merger, asset or stock purchase or divestiture Contract relating to the Company or any of its Subsidiaries;
(xiv) any collective bargaining agreement or Contract with any labor union or providing for benefits under any Plan;
(xv) any hedging, futures, options or other derivative Contract;
(xvi) any Contract for the purchase of all any debt or a given portion equity security or other ownership interest of any Person, or for the 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, the Company or any of its Subsidiaries;
(xvii) any Contract that contains restrictions with respect to the payment of dividends or any other distribution in respect of the Interests or shares of capital stock or equity interests of any Subsidiary of the Company, or for the disposition of any of the Company’s or any Subsidiaries of the Company’s assets or business (whether by merger, sale of stock or equity interests, sale of assets or otherwise);
(xviii) any Contract under which the Company Subsidiary’s requirements for products or any Subsidiary of the Company has agreed or committed to make a capital expenditure or to purchase a capital asset in excess of $250,000, individually by or on behalf of the Company or any Subsidiary of the Company;
(xix) any Contract with: (A) a sole source supplier, pursuant to which any such supplier provides to the Company equipment, materials or services from a given third partythat are necessary or material for the sale, performance, manufacturing, or any other similar provision (including non-cancelable purchase obligations), support of the Company business; (B) any provision that grants material guaranteed availability of supply of Person, pursuant to which the Company products for a period greater than twenty-four (24) monthsis obligated to purchase all, or more than 50%, of its requirement for any product, good or service that is material to the Company’s business as currently conducted; and (C) guarantees priority a Major Supplier;
(xx) any Contract relating to settlement of any administrative or prices for a period of greater than twenty-four (24) monthsjudicial proceedings since March 2, 2011;
(xxi) contains any provision allowing Contract that results in any Person holding a “major antenna product distributor” power of attorney from the Company or any of its Subsidiaries that relates to return product;the Company, any of its Subsidiaries or any of their respective businesses; and
(xxii) is a leaseany other Contract, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into not made in the ordinary course of business consistent with past practice.
that (bA) Each Contract required to be listed in Section 3.22(a) of involves a future or potential liability or receivable, as the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or bothcase may be, in breach excess of $250,000 on an annual basis or default under in excess of $500,000 over the terms of any Company Material Contractcurrent Contract term, and, to the knowledge of the Company, no event (B) has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder term greater than one year and cannot be cancelled by the Company or any Company Subsidiary. Neither a Subsidiary of the Company nor any Company Subsidiary has received without penalty or further payment and without more than 30 days’ notice or (C) is material to the business, operations, assets, financial condition, results of such an event. To the knowledge operations or prospects of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is its Subsidiaries, taken as a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contractswhole.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Standard Register Co)
Company Material Contracts. (a) Section 3.22(aSection 4.09(a) of the Company Disclosure Letter sets forth forth, as of the date hereof, a true, correct true and complete listlist of each Contract to which an Acquired Company is a party, and which falls within any of the following categories:
(i) any joint venture, strategic alliance, partnership or similar agreement that is material to the operation of the Acquired Companies, taken as a whole;
(ii) except with respect to indebtedness between or among any Acquired Companies, any Contract relating to (A) indebtedness for borrowed money or evidenced by promissory notes or debt securities, (B) any financial guaranty (other than guarantees of programming agreements), (C) any capital or finance leases, (D) obligations under any letter of credit or surety bond, or (E) any interest rate, currency or other swap, forward, future, collar, put, call, floor, cap, option or other similar Contract, in each case in excess of $500,000 individually;
(iii) any Contract relating to an acquisition, investment, asset purchase, divestiture, merger or similar transaction (A) which the Company has made available entered into in the past five (5) years or (B) that has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations on an Acquired Company;
(iv) any Real Property Lease;
(v) any Contract between or among the 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 any class of Company Common Stock (other than the Company) or any Affiliate of the foregoing (or, to Parent truethe Knowledge of the Company, correct any immediate family member of any of the foregoing), on the other hand;
(vi) any Contract that by its terms limits the payment of dividends or other distributions to equityholders by the Company or any Subsidiary of the Company;
(vii) any collective bargaining agreement or other similar Contract with any CBA, whether the same is in effect or has expired and complete copiesan Acquired Company is continuing to operate thereunder or negotiating, or required to negotiate, a renewal thereof;
(viii) any Contract with a Material Customer or Material Supplier;
(ix) any Contract or group of each Contract, including amendments thereto, Contracts with an advertiser or sponsor or pursuant to which the Company or any of its Subsidiaries has otherwise sold or traded commercial air time or advertising inventory on any Company Programming Service or digital platform in consideration for cash, property or services with a value in excess of $2,000,000 in the aggregate;
(x) any Contract (A) under which any Acquired Company grants any license or other right to any Person with respect to material Company IP, or receives any license or other right from any Person with respect to any material Intellectual Property Rights, or (B) otherwise affecting any Acquired Company’s ability to enforce, own, register, use or otherwise exploit any material Company IP (including any covenant not to sxx or co-existence or settlement agreements) in each case of (A) and (B), that is material to the operation of the Acquired Companies, taken as a whole, and other than any Contracts entered into by any Acquired Company in the ordinary course of business and non-exclusive licenses received by any Acquired Company with respect to Standard Software;
(xi) any Contracts which allow a third party to distribute all or a substantial portion of a Company Programming Service or its content on a “white label” or syndication basis;
(xii) each Contract that is a settlement, conciliation or similar agreement with any Governmental Authority or pursuant to which the Company or its Subsidiaries is will have any material outstanding obligation after the date of this Agreement;
(xiii) any “output” or other overall licensing Contract that pertains to the incoming licensing of a party material amount of original library or by other audiovisual content for exhibition on one or more Company Programming Services, the termination of which it is bound would have a materially adverse impact on the operation of the Company or its Subsidiaries or their ability to which program any Company Programming Service;
(xiv) other than Carriage Agreements entered into in the ordinary course of business, any Contract that materially limits the ability of the Company or any of their respective its Subsidiaries to compete in any line of business or with any Person in any geographic area or during any period of time, or that materially restricts the right of the Company or its Subsidiaries to sell to, license to, or purchase from any Person or which materially limits its ability to distribute any Company Programming Service in any geographic area or during any period of time;
(xv) any Contracts relating to mortgaging, pledging or otherwise placing any Lien on any material portion of the assets are subjectof the Company or the Subsidiaries; and
(xvi) any other Contract that any of the Acquired Companies is party to that is required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K of the Securities Act that has not been so filed. Each Contract of the type described in this Section 4.09(a), other than this Agreement, is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract (including all material amendments thereto), as of the date of this Agreement, that:have been made available by the Company to Parent.
(b) Except as set forth on Section 4.09(b) of the Company Disclosure Letter: (i) each Company Material Contract is a partnershipvalid, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research binding 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 enforceable obligation of the Company or any Company Subsidiaryone of its Subsidiaries and, to the Knowledge of the Company, of the other party or parties thereto, in each caseaccordance with its terms, 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 subject 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 Enforceability Exceptions; (ii) investments each Company Material Contract is in marketable securities full force and effect, except to the extent any Company Material Contract expires or terminates in accordance with its terms in the ordinary course of business;
; (viiii) 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 covenant (A) limiting in any material respect the ability none of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation its Subsidiaries has received written notice of any violation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or default under any Company Subsidiary to exclusivity obligations), Material Contract; and (yiv) engage each Acquired Company has in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any all material benefit respects performed all obligations required to be granted performed by it under each Company Material Contract, except, in each case, as would not reasonably be expected to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that ishave, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Since the Company Balance Sheet Date through the date of this Agreement, no counterparty to a Company Material Contract is a valid and binding obligation of, and is has notified the Acquired Companies in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto andwriting (or, to the knowledge Knowledge of the Company, each other party thereto, except for such failure otherwise) that would it intends to terminate or not have renew a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material ContractsContract.
Appears in 1 contract
Company Material Contracts. (a) Section 3.22(a) of the Company Disclosure Letter Schedule 3.12 sets forth a true, complete and correct and complete list, and list of all agreements of the Company has made available to Parent true, correct and complete copies, of each Contract, including amendments thereto, following type to which the Company or any of the a Company Subsidiaries Subsidiary is a party or by may be bound and all or any portion of which it is bound or are currently in effect (collectively, the "Company Material Contracts"): (i) agreements filed as an exhibit to which any of their respective assets are subjectthe Company SEC Reports and each agreement entered into after March 31, 1997 that would have been required to be filed as an exhibit to the Company SEC Reports had such agreement been entered into 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 filing any such arrangement;
Company SEC Report; (ii) provides for the creationemployment, incurrenceseverance, assumption or guarantee of or otherwise relates to Indebtedness of the Company or any Company Subsidiarytermination, in each case, for borrowed money;
consulting and retirement agreements; (iii) grants any rights loan agreements, indentures, letters of first refusalcredit, rights of first negotiationmortgages, exclusivity or notes and 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;
debt instruments; (iv) provides for the acquisition agreements that require aggregate future payments to 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, of more than Fifty Thousand Dollars (B$50,000); (v) with respect to which conditions precedent to the settlement have not been satisfied or (C) which materially affects the conduct outstanding purchase orders of the Company’s Company and the Company Subsidiaries as of July 31, 1997; (vi) agreements containing any "change of control" provisions which, if triggered, would involve, individually or in the aggregate, payments by the Company or any Company Subsidiary’s business;
Subsidiary in excess of Fifty Thousand Dollars ($50,000) or other material rights or obligations; (vii) contains agreements, arrangements or understandings with any provision employee, director, officer, or covenant person known to the Company to be a direct or indirect stockholder of the Company or any affiliate thereof; (viii) agreements prohibiting the Company or any Company Subsidiary from engaging or competing in any line of business or limiting such competition; (ix) joint venture, partnership and similar agreements involving a sharing of profits; (x) acquisition or divestiture agreements relating to the (A) limiting in any material respect the ability sale of assets or stock of the Company or any Company Subsidiary (or, after other than sales of inventory in the consummation ordinary course of business) or (B) the Merger, Parent, the Surviving Corporation purchase of assets or any stock of their respective Subsidiaries) to (x) sell any products or services of or to any other person (other than the purchase of inventory, supplies or equipment in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line ordinary course of business); (xi) brokerage, finder's or financial advisory agreements; (zxii) compete with or to obtain products or services from guarantees of indebtedness for borrowed money of any person; (xiii) customer contracts with completion dates after December 31, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary 1997; (orxiv) supply contracts, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), reseller and dealer agreements and (Bxv) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that isagreements that, individually or in the aggregatetogether with one or more related agreements, are material to the assets or the financial condition of the business and operations of the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is taken as a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practicewhole.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not Except as set forth in such section of Schedule 3.12, all the Company Disclosure Letter, is referred to Material Contracts are valid and in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, full force and effect except to the knowledge of the Companyextent they have previously expired in accordance with their terms, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither and neither the Company nor any Company Subsidiary has received notice of such an event. To the (or has any knowledge of the Company, no that any other party thereto 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 is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party theretoContract, except for such failure that defaults which in the aggregate would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct True and complete copies of all Company Material ContractsContracts and any other contracts described on Schedule 3.12 have been delivered to Acquiror or made available for inspection.
Appears in 1 contract
Company Material Contracts. (a) Section 3.22(a) 3.15 of the Company Disclosure Letter sets forth a true, correct Schedules lists each of the following written contracts and complete list, agreements (other than any lease of Company Leased Real Property and the Company has made available contracts and agreements relating to Parent true, correct and complete copies, of each Contract, including amendments thereto, Intellectual Property) to which the Company or any of the Company its Subsidiaries is a party or by which it that is bound or to which any of their respective assets are subject, in effect as of the date of this AgreementAgreement Date (each such Contract or arrangement, that:together with any such contracts or arrangements entered into after the Agreement Date, collectively being “Company Material Contracts”):
(i) is a partnership, any joint venture, partnership or strategic alliancealliance contract or investment agreement, collaboration, co-promotion, profit-sharing, joint research and development or similar arrangement, or provides for or governs in each case related to the formation, creation, operation, management or control of such arrangement;
(ii) provides for the creation, incurrence, assumption any partnership or guarantee of or otherwise relates to Indebtedness of joint venture in which the Company or any Company Subsidiary, in each case, for borrowed money;
(iii) grants of its Subsidiaries owns any rights of first refusal, rights of first negotiation, exclusivity or other similar rights or options to any person with respect partial interest and that is material to the sale of any of the material properties or assets (including material Owned Company Intellectual Property) business of the Company or any Company Subsidiary;
(iv) provides for the acquisition or disposition (whether by mergerand its Subsidiaries, sale of stock, sale of assets, or otherwise) of any interest in any person or any business or division thereof, or taken as a material portion of the assets of any personwhole, other than this Agreement, (A) revenue sharing agreements 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;
(viii) provides for any settlement, conciliation or similar contract which would require the settlement Company or any of its Subsidiaries to pay consideration of more than $2,000,000 (after taking into consideration any Proceeding (Ainsurance proceeds available to the Company or any of its Subsidiary, as applicable, in respect thereof) which (x) will involve payment obligations after the date hereof in excess of $50,000 or (y) imposes to satisfy any continuing material non-monetary obligations on obligations, in each case after the Agreement Date;
(iii) any contract that contains any covenant limiting, to a degree that is material to the Company or any Company Subsidiary including any monitoring or reporting obligations to any other personof its Subsidiaries, (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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (orof its Subsidiaries, after the consummation of the Mergeras applicable, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, business or (z) compete with any Person, in each case in any geographic area (excluding any contracts entered into with distributors or to obtain suppliers in the ordinary course of business);
(iv) any contract or agreement (A) for the acquisition, directly or indirectly (by merger or otherwise) of a material portion of the assets (other than goods, products or services from any person, in the ordinary course) or limiting the ability capital stock or other equity interests of any person to provide products or services Person for aggregate consideration in excess of $2,000,000 and that has not closed prior to the Company Agreement Date or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary of its Subsidiaries has agreed not continuing indemnification (other than indemnification obligations with respect to current or former directors and officers), “earn-out” or other similar contingent payment obligations that are reasonably expected to exceed $2,000,000 in the aggregate after the Agreement Date or (B) that gives any Person the right to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of its Subsidiaries (excluding ordinary course commitments to purchase goods, products or services) after the Agreement Date with a total consideration of more than $2,000,000;
(v) a contract or agreement pursuant to which Company or its Subsidiaries has licensed or otherwise been granted rights under any Intellectual Property from any other Person for distribution with the Company’s products, other than licenses to generally commercially available software or other Technology that is, individually have an ongoing cost of $1,000,000 or less per annum in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(xvi) is a license contract or other Contract relating agreement pursuant to any which material Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted owned by the Company or any of the Company its Subsidiaries is licensed or transferred to any other personPerson, including other than any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers disclosure agreements entered into in the ordinary course of business; and (B) non-exclusive licenses (including software as a service or “SaaS” license) granted in the ordinary course of business consistent or in connection with past practicethe sale of the Company’s or its Subsidiaries’ products or services; and
(vii) all Affiliate Arrangements.
(b) (i) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of its Subsidiaries is a party or by which the Company, no any of its Subsidiaries, or any of their respective properties or assets is bound (other party to any than the Company Material Contract Plans) is in breach of or default under the terms of any Company Material Contract where such breach or defaultvalid, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid binding and binding obligation of, and is in full force and effect with respect to, enforceable on the Company and any Company Subsidiary that of its Subsidiaries to the extent such Person is a party thereto andthereto, as applicable, and to the knowledge Knowledge of the Company, each other party thereto, except for such failure that would not have a and is in full force and effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, is in compliance in all material respects with all Company Material Adverse EffectContracts and has performed in all material respects all obligations required to be performed by it under each Company Material Contract, subject (iii) to the Bankruptcy and Equity Exception. The Knowledge of the Company, neither the Company nor any of its Subsidiaries has made available to Parent truereceived notice of the existence of any event or condition which constitutes, correct and complete copies or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any such Company Material ContractsContract, and (iv) to the Knowledge of the Company, there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Company Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Connecture Inc)
Company Material Contracts. (a) Section 3.22(a3.15(a) of the Company Seller Disclosure Letter Schedule sets forth a true, correct true and complete list, and the Company has made available to Parent true, correct and complete copies, list of each Contract, including amendments thereto, Contract that is in effect as of the date of this Agreement to which the Company or any of the Company Subsidiaries is a party or by which it is bound otherwise bound, which are in the following categories (collectively, and together with the Company Leases and the License Agreements, and any amendments, modifications or to which any of their respective assets are subjectsupplements thereto, as of the date of this Agreement, that:
"Company Material Contracts"): (i) any natural gas supply, gathering, distribution, transportation or storage Contract that is a partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development reasonably likely to require payments by 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 following the date hereof in excess of $50,000 5,000,000 during any fiscal year, or $25,000,000 over the remaining term of any such Contract; (yii) imposes any continuing material non-monetary obligations on the Company hedging or any Company Subsidiary including any monitoring or reporting obligations to any other personmaterial derivative Contract, (B) including, without limitation, with respect to which conditions precedent the purchase or sale of natural gas; (iii) any franchise or similar Contract with any Governmental Entity that is material to the settlement have not been satisfied Company; (iv) any partnership, joint venture or (C) which materially affects the conduct of similar Contract with a third party that is material to the Company’s or ; (v) any Company Subsidiary’s business;
(vii) contains any provision or Contract containing a covenant (A) limiting in any material respect not to compete that materially impairs the ability of the Company to freely conduct the Business or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or business in any geographic region area; (vi) any Contract (including letters of credit or subject the Company similar instruments) evidencing or guaranteeing indebtedness for borrowed money or any Company Subsidiary to exclusivity obligations)obligation that, (y) engage in any line of businessaccordance with GAAP, or (z) compete with or to obtain products or services from any personwould be classified as a capital lease, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license repayment or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after obligations following the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) this Agreement in excess of $100,0003,000,000, (B) and any material mortgage, security agreement, guarantee, pledge agreement or similar Contract providing for the payment of any cash or Encumbrance (other compensation or benefits upon the consummation than Permitted Encumbrances) on any of the transactions contemplated by this Agreement material assets of the Company and that secures indebtedness for borrowed money or (C) otherwise restricting the Company’s payment obligations under a Contract that, in accordance with GAAP, would be classified as a capital lease; and (vii) any other Contract, not otherwise covered by clauses (i) through (vi) of this Section 3.15(a), that is reasonably likely to require payments by or any to the Company Subsidiary’s) ability to terminate following the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits date hereof in excess of $50,000 in 3,000,000 during any fiscal year, or $6,000,000 over the aggregate;remaining term of any such Contract. Seller or the Company has heretofore made available to Purchaser true and complete copies of each Company Material Contract.
(Ai) has been entered into with Each Company Material Contract (x) constitutes a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity valid and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate binding obligation of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge Knowledge of Seller, the other parties thereto, and (y) assuming such Company Material Contract is a valid and binding obligation of and enforceable against the other party(ies) thereto, is enforceable against the Company, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors' rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at Law or in equity), and (ii) the Company is not in breach or default, and no event has occurred thatwhich, with or without notice, due notice or lapse of time or both, would constitute a breach or default by the Company, under any Company Material Contract, except, in each case, where such failure to be so valid, binding and enforceable, or such breach or default, would not, individually or in the aggregate, have a Material Adverse Effect, and the Company has not given notice of a material breach or material default thereunder by the Company or of any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party material provision thereof to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contracts).
Appears in 1 contract
Company Material Contracts. (a) Except as disclosed in Section 3.22(a4.16(a) of the Company Disclosure Letter sets forth a trueSchedule, correct and complete list, and neither the Company has made available nor any of its Subsidiaries is a party to Parent trueor bound by:
(i) except for any acquisition agreement entered into after the date hereof permitted Section 6.01(b), correct any agreement for the purchase of materials, supplies, goods, services, equipment or other assets (other than freight orders or purchase orders) providing for either (a) annual payments by the Company and complete copiesits Subsidiaries of $500,000 or more or (b) aggregate payments by the Company and its Subsidiaries of $1,000,000 or more;
(ii) any sales, of each Contract, including amendments thereto, to which distribution or other similar agreement providing for the sale by the Company or any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets (other than freight orders or purchase orders) that provides for either (a) annual payments to the Company and its Subsidiaries is a party of $500,000 or by which it is bound more or (b) aggregate payments 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 and its Subsidiaries of $1,000,000 or any Company Subsidiary, in each case, for borrowed moneymore;
(iii) grants any rights requirements contract that (a) the Company has budgeted or reasonably anticipates aggregate purchases by the Company and its Subsidiaries of first refusal, rights of first negotiation, exclusivity $1,000,000 or other similar rights more or options to any person with respect (b) is applicable to the sale of any of the material properties or assets (including material Owned Company Intellectual Property) of Company's Affiliates other than the Company or any Company Subsidiaryand its Subsidiaries;
(iv) provides for any partnership, joint venture or other similar agreement or arrangement;
(v) except any acquisition agreement entered into after the date hereof permitted by Section 6.01(b), any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets, 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 1by the Company in the past three years or, 2021 and if entered into by the Company more than three years ago, under 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 of its Subsidiaries still has an outstanding Liability;
(vi) any franchise or similar agreement;
(vii) any agency, dealer, sales representative, marketing or other similar agreement;
(viii) any agreement with any Person to the Knowledge of the Company Subsidiarydirectly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of the Company or any of its Affiliates;
(ix) any agreement with any director or officer of the Company or any of its Subsidiaries or with any "associate" or any 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 officer; or
(x) any other than (i) extensions of credit agreement, commitment, arrangement or plan not made 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company its Subsidiaries, but excluding Incidental Contracts;
(x) is taken as a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practicewhole.
(b) Each Contract agreement, contract, plan, lease, arrangement or commitment disclosed in any Schedule to this Agreement or required to be listed in disclosed pursuant to this Section 3.22(a) is a valid and binding agreement of the Company Disclosure Letteror its Subsidiary, whether or not set forth as the case may be, and is in such section full force and effect, and none of the Company Disclosure LetterCompany, is referred any of its Subsidiaries or, to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) Knowledge of the Company Disclosure Letter to which such Contract Company, any other party thereto is relevant). Neither the Company nor in default or breach in any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default material respect under the terms of any Company Material Contractsuch agreement, contract, plan, lease, arrangement or commitment, and, to the knowledge Knowledge of the Company, no event or circumstance has occurred that, with or without notice, notice or lapse of time or both, would constitute a material breach or material any event of default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party theretothereunder, except for such failure that defaults, breaches and events of default which, individually and in the aggregate, would reasonably be expected not to have a Company Material Adverse Effect, subject to Effect on the Bankruptcy and Equity ExceptionCompany. The Company has made available to Parent true, correct True and complete copies of Company Material Contractseach such agreement, contract, plan, lease, arrangement or commitment have been delivered to the Parent.
Appears in 1 contract
Company Material Contracts. (a) Except for this Agreement, the Waiver and Amendment Agreement and any agreement between the Company and its Subsidiaries and the Purchaser and its Affiliates, and except for the Contracts filed as part of the Company Public Disclosure Record, Section 3.22(a(22) of the Company Disclosure Letter sets forth a true, correct true and complete list, and list of the Company has made available to Parent true, correct and complete copies, of each Contract, including amendments thereto, following Contracts to which the Company or any of the Company its Subsidiaries is a party or by to which it is bound or to which any of their respective assets are subject, as of the date of this Agreement, thatbound:
(i) any supply or purchase Contract that (A) required payments either to or from the Company and its Subsidiaries of more than $200,000 in the aggregate in the past twelve (12) months, or (B) is a reasonably likely to require payments either to or from the Company and its Subsidiaries of more than $200,000 in the aggregate in the next twelve (12) months;
(ii) any partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research or an arrangement for the sharing of profits or proprietary information or other similar agreement or arrangement that is material to the business of the Company or any of its Subsidiaries and development or similar arrangement, or provides for or governs that relates to the formation, creation, operation, management or control of such arrangement;
(ii) provides for any partnership, joint venture, strategic alliance, or sharing of profits or proprietary information material to the creation, incurrence, assumption or guarantee of or otherwise relates to Indebtedness business of the Company or any of its Subsidiaries or in which the Company Subsidiaryor any of its Subsidiaries owns more than a five percent (5%) voting, economic or other membership or partnership interest, or any interest valued at more than $100,000 without regard to percentage voting or economic interest;
(iii) any Contract (other than solely among direct or indirect wholly-owned Subsidiaries of the Company) relating to indebtedness for borrowed money or the deferred purchase price of property owned by the Company, in either case, whether incurred, assumed, guaranteed or secured by any asset, in excess of $200,000;
(iv) any Contract that: (A) limits in any material respect either the type of business in which the Company or any of its Subsidiaries (or, after the Effective Time, the Purchaser or any of its Subsidiaries) may engage or the manner or geographic areas in which any of them may so engage in any business; (B) stipulates covenants of any other Person not to compete with the Company or any of its Subsidiaries (or, after the Effective Time, the Purchaser or any of its Subsidiaries) in any type of business or in any geographical area; (C) could require the disposition of any material assets or line of business of the Company or any of its Subsidiaries; or (D) includes “take or pay” requirements or similar provisions obligating a Person to obtain a minimum quantity of goods or services from another Person, except as would not be material to the Company and its Subsidiaries (taken as a whole);
(v) any Contract with a Governmental Entity for a value in excess of $200,000;
(vi) any Contract containing (A) covenants of the Company or any of its Subsidiaries (or, after the Effective Time, the Purchaser or any of its Subsidiaries) not to solicit or hire any Person with respect to employment or (B) covenants of any other Person not to solicit or hire any Person with respect to employment, excluding, in each case, for borrowed money;customary non-solicitation provisions regarding the non-solicitation of customers, suppliers and partners in Contracts with such persons.
(iiivii) grants any rights of first refusal, rights of first negotiation, exclusivity except for compensation or other similar rights or options to employment arrangements, any person with respect to the sale of any of the material properties or assets (including material Owned Company Intellectual Property) of Contract between the Company or any Company Subsidiary;
(iv) provides for of its Subsidiaries, on the acquisition or disposition (whether by mergerone hand, 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, and (A) entered into since January 1any current or former director, 2021 and which involves an asset value in excess of $100,000 or (B) pursuant current or former chairman, chief executive officer, president, secretary, treasurer or any senior vice-president of the Company, (C) any Person which, 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 knowledge of the Company or any Company Subsidiary) and other than based on the information set out in (i) extensions the Information Circular of credit in the ordinary course of business consistent with past practice Company dated December 14, 2022 (as amended from time to time), and (ii) investments a list of non-objecting beneficial owners of the Company Shares as of December 22, 2022, provided by TSX Trust Company, beneficially owns one percent or more of the number or the voting power attached to the issued and outstanding Company Shares, on the other hand, or (D) an Associate of any such Person listed in marketable securities in the ordinary course of businessclause (C) above;
(viviii) provides for the settlement any Contract that grants any right of any Proceeding (A) which (x) will involve payment obligations after the date hereof in excess first refusal or right of $50,000 first offer or (y) imposes any continuing material non-monetary obligations on the Company similar right or any Company Subsidiary including any monitoring that limits or reporting obligations purports 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 covenant (A) limiting in any material respect limit the ability of the Company or any Company Subsidiary of its Subsidiaries to sell, transfer, pledge or otherwise dispose of any material assets or businesses;
(orix) any Contract that gives another Person the right to purchase or license an unlimited quantity or volume of, after the consummation or enterprise-wide scope of the Merger, Parentuse of, the Surviving Corporation Company’s products or any of their respective Subsidiariesservices (or licenses to the Company that Person’s products or services) to for a fixed aggregate price at no additional charge;
(x) sell any products or services of or to any Contract (other person or in any geographic region (or subject the than Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (BAwards) that has any “most favored nations” contains a put, call or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement right pursuant to which the Company or any Company Subsidiary has agreed not of its Subsidiaries could be required to acquire purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or securities purchase price of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contractsmore than $100,000;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment of, or engagement receipt of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) services from any Company Employee providing for the payment of any annual cash base salary or other compensation wage or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member consulting fees (excluding, for the avoidance of doubt, variable compensation) in excess of $200,000;
(xii) any Company Benefit Plans and governing documents employment or consulting Contract which provides for change in control entitlements, or active retention payments in connection with a change of control in excess of $50,000;
(xiii) any Contract with any independent contractors of the Company or any Company Subsidiary)of its Subsidiaries or other Persons that have provided intellectual property or other proprietary information development services to the Company;
(xxxiv) any collective bargaining agreement or similar Contract with any labour union, works council, labour organization, economic committee, or other employee representative body applicable to any Company Employee;
(xv) any Contract that contains a change of control provision that modifies the rights of any party to such Contract or requires consent of a party thereto in connection with the transactions contemplated by the Agreement; and
(xvi) any Contracts pursuant to which (A) any provision that requires the purchase of all or a given portion of the Company’s Company or any Company Subsidiary’s requirements for products or services from a given third partyof its Subsidiaries is granted by any other Person, or grants to any other similar provision Person, any license, sublicense, consent to use, settlement, coexistence agreement, covenant not to sue, waiver, release, or permission, whether written or oral, relating to any Intellectual Property Rights, or that assigns to any Person, or is assigned by any Person, any Intellectual Property Rights (including nonother than shrink wrap agreements for off-cancelable purchase obligationsthe-shelf software), or (B) any provision that grants material guaranteed availability research or development activities are conducted with respect to any of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any of its Subsidiaries products and services or any Intellectual Property Rights of the Company Subsidiary is a party as either lessor or lessee, providing for either any of its Subsidiaries (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into each such Contract described in the ordinary course of business consistent with past practiceforegoing clauses (i) through (xv), is referred to herein as a “Company Material Contract”).
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure LetterMaterial Contracts is legal, whether or not set forth in such section of valid and binding on the Company Disclosure Letteror its Subsidiaries, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contractcase may be, and, to the knowledge of the Company’s knowledge, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no each other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation ofthereto, and is in full force and effect and is enforceable by the Company or any of its Subsidiaries, as applicable, in accordance with respect toits terms (subject to bankruptcy, insolvency and other Laws affecting creditors’ rights generally, and to principles of equity), and, except for Company Material Contracts set forth in Section (22)(a)(vii) of the Company Disclosure Letter, is the product of fair and arms’ length negotiations between each of the parties to such Company Material Contracts.
(c) The Company and each of its Subsidiaries have performed, in all material respects, all respective obligations required to be performed by them to date under the Company Material Contracts of the Company and there is no material default under any such Company Subsidiary that is a party thereto andMaterial Contracts by the Company or any of its Subsidiaries, and to the knowledge of the Company’s knowledge, each any other party thereto, except for such failure and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material default thereunder by the Company or its Subsidiaries, and to the Company’s knowledge, any other party thereto.
(d) The Company has not have received notice (whether written or oral) that any party to a Company Material Adverse EffectContract intends to cancel, subject terminate or otherwise materially modify or not renew its relationship with the Company or any of its Subsidiaries and to the Bankruptcy Company’s knowledge, no such action has been threatened.
(e) No party to a Company Material Contract is entitled to terminate or amend any material term of such Company Material Contract in connection with or as a result of, or is otherwise entitled to a payment in connection with the Arrangement or the completion of the transactions contemplated by this Agreement.
(f) Complete and Equity Exception. The correct copies of each Company has Material Contract entered into by the Company since July 12, 2022, have been made available to Parent true, correct and complete copies of Company Material Contractsthe Purchaser prior to the date hereof.
Appears in 1 contract
Samples: Arrangement Agreement (HEXO Corp.)
Company Material Contracts. (ai) Section 3.22(a5J(a) of the Company Disclosure Letter sets forth a true, correct and complete list, and list as of the Company has made available to Parent true, correct and complete copies, date of this Agreement of each Contractof the following types of written and oral contracts, including amendments theretoleases, commitments and agreements to which the Company or any of the Company its Subsidiaries is a party (collectively, the “Company Material Contracts”):
(a) any agreement, plan or arrangement 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 Subsidiaryof its Subsidiaries is bound with regard to employment, in each caseconsulting services, for borrowed money;
(iii) grants any rights of first refusalcompensation, rights of first negotiationbonus, exclusivity incentive, stock option, equity purchase or other similar rights equity-based compensation or options to right (including, without limitation, profits interests or equity appreciation rights), severance pay, retention bonuses, or success fees, other than (a) any person with respect to the sale of any of the material properties or assets (including material Owned Company Intellectual PropertyEmployee Benefit Plan set forth on Section 5N(i) of the Company Disclosure Letter, (b) any consulting agreements that either (I) require future payments by the Company or any of its Subsidiaries of less than $100,000 or (II) have a remaining term of less than one year and can be terminated by the Company Subsidiaryor any of its Subsidiaries upon notice of 60 days or less without material cost or penalty, or (c) any oral “at will” employment arrangements;
(ivb) provides for each management, operating, services or other similar agreement pertaining to the acquisition or disposition (whether by merger, sale of stock, sale of assets, or otherwise) operation and maintenance 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 Facility with annual payments 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 and that is not terminable by the Company or any Subsidiary of the Company Subsidiary) and other than (i) extensions upon notice of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business60 days or less without substantial cost or penalty;
(vic) provides for any employee collective bargaining agreement or other labor or union contract or agreement;
(d) all material powers of attorney;
(e) all partnership or joint venture agreements;
(f) all agreements, arrangements or understandings with any Affiliate of the settlement Company (other than any Subsidiary of the Company);
(g) 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 agreement containing a covenant not to compete granted by the Company or any Company Subsidiary including any monitoring of its Subsidiaries in favor of a third party that impairs the Business as currently conducted, 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 covenant (A) limiting in any material respect expressly restricts the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or its Subsidiaries to conduct business of any of their respective Subsidiaries) to (x) sell any products or services of or to any other person type or in any geographic region location;
(or subject the Company or h) any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill lease or similar agreement pursuant to under which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (Da) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of its Subsidiaries is lessee of, holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third party or (b) the Company or one of its Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license lessor or other Contract relating to sublessor of, or makes available for use by any Intellectual Property Rights thatthird party, individually any tangible personal property owned or in the aggregate, are material to the Company and the Company Subsidiaries and granted leased by the Company or any of the Company Subsidiaries its Subsidiaries, in any case which has future required scheduled payments in excess of $100,000 per annum and is not terminable by it upon notice of 60 days or less without substantial cost or penalty;
(i) all instruments relating to any other personIndebtedness, including any Contracts whereby note, bond, deed of trust, mortgage, indenture or agreement to borrow money, any agreement relating to the extension of credit, or any agreement of guarantee in favor of any Person other than the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contractsof the Company;
(xij) any Contract containing covenants limiting contract or agreement evidencing any Lien on any of the freedom assets or properties of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company its Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreementother than Permitted Encumbrances), but excluding Incidental Contracts;
(xiik) is a Contract between the Company or any Company Subsidiary and any sales representativeagreement, distributorcontract, original equipment manufacturerlease, manufacturing, value added, remarketer, resellerlicense, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to instrument under which the Company or any Company Subsidiary is a of its Subsidiaries has agreed (a) to purchase any membership interests, partnership interests, equity interests, stock, indebtedness or assets from any third party (each, a “CBA”);
(xv) is for an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) aggregate purchase price in excess of $100,000, (Bb) providing for to acquire any interest in any business enterprise (whether through the payment purchase or sale of assets, equity interests or by merger, consolidation or other business enterprise), or (c) to sell or dispose of any cash of its membership interests, partnership interests, equity interests, stock, indebtedness or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or assets to any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or third party for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits an aggregate sale price in excess of $50,000 in the aggregate100,000;
(Al) has been entered into with a Governmental Entity oreach agreement, to the knowledge of the Company, is any material subcontract (at any tier) under commitment or for the purpose of fulfilling a contract or outstanding purchase order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between capital expenditures that involves total remaining payments by the Company or any Subsidiary of the Company Subsidiaryof more than $50,000;
(m) any material contract or agreement relating to the licensing of Company Intellectual Property (other than licenses for commercially-available, on standard, off-the-shelf, desktop or similar computer software), whether the one handCompany or a Subsidiary is the licensee/grantee or licensor/grantor thereunder;
(n) all material agreements, and contracts or commitments for any officercharitable or political contribution;
(o) any consent order, director consent judgment or affiliate of similar agreement with any Governmental Entity whereby the Company is under an obligation to perform activities, refrain from activities and/or pay money;
(p) any other agreement, contract, lease, license, instrument or commitment binding upon the Company or any Company Subsidiary of its Subsidiaries, in each case not included in clauses (i) through (xv) above, which has future required scheduled payments to or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which by the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof its Subsidiaries in excess of $100,000 per annum and is not terminable by it upon notice of 60 days or more; or
(xxiii) creates less without substantial cost or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practicepenalty.
(bii) Each The Company has made available to Buyer a copy of each Company Material Contract, unless such delivery or inspection would be in violation of the provisions of any such Company Material Contract required (in which case a redacted copy has been made available to be listed in Buyer to the extent permitted by such Company Material Contract). Except as disclosed on Section 3.22(a5J(b) of the Company Disclosure Letter, whether the Company or one of its Subsidiaries, as applicable, has performed all material obligations required to be performed by it to date under the Company Material Contracts and is not set forth (with or without the lapse of time or the giving of notice, or both) in such section breach or default thereunder in any material respect. Except as disclosed on Section 5J(c) of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither neither the Company nor any Subsidiary of the Company Subsidiary ishas received written notice of such a default, has received written notice of an event or occurrence of which with the giving of notice or without notice, or the lapse of time, time would constitute a default in any material respect under any covenant or both, in breach of or default condition under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any such Company Material Contract is in breach of or default under the terms of in any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with material respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contractsthereunder.
Appears in 1 contract
Company Material Contracts. (a) Section 3.22(a) 4.11 of the Company Disclosure Letter sets forth a true, correct and complete list, and each of the following Contracts to which the Company has made available or one of its Subsidiaries is a party as of the date hereof (the "Company Material Contracts"):
(i) collective bargaining agreements or other Contracts with any labor union;
(ii) Contracts relating to Parent truethe incurrence of Indebtedness;
(iii) Contracts for or relating to the lease of any personal property (including any DAS Networks) for which the annual rental or payment exceeds $250,000;
(iv) Contracts for the lease or sublease of any real property to or from any Person for which the annual rental exceeds $250,000;
(v) Contracts for the lease or license of any Intellectual Property (other than for commercially available, correct and complete copies, of each Contract, including amendments thereto, off-the-shelf software) pursuant to which the Company or any of its Subsidiaries has granted to any third party, or been granted by any third party, any material rights used in the Company Subsidiaries is a party or by which it is bound or to which any conduct 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 arrangementbusiness;
(iivi) provides for the creation, incurrence, assumption Master service agreements or guarantee of or otherwise relates to Indebtedness Contracts with any customer of the Company or any Company Subsidiaryof its Subsidiaries;
(vii) Fiber IRU Contracts;
(viii) DAS Network orders, right-of-way use Contracts (and other similar Contracts) with Governmental Entities, and access or attachment Contracts (and other similar Contracts) with utilities, in each case, case for borrowed moneyDAS Networks of the Company and its Subsidiaries;
(iiiix) grants any rights of first refusal, rights of first negotiation, exclusivity Contracts that require or other similar rights or options that would be reasonably be expected to any person with respect to require the sale of any of the material properties or assets (including material Owned Company Intellectual Property) of expenditure by the Company or any Company Subsidiaryof its Subsidiaries of $250,000 or more within the one (1) year period commencing on the date hereof or $1,000,000 or more during the remaining life of the Contract;
(ivx) provides for Contracts (other than confidentiality agreements entered into in the acquisition or disposition (whether by merger, sale ordinary course of stock, sale of assets, or otherwisebusiness) of any interest in any person which prohibit the Company or any of its Subsidiaries from freely engaging in business anywhere in the world 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 benefit is required to be given or contingent payment or indemnification obligations remain outstandinglost as a result of so competing;
(vxi) make any investment injoint venture, partnership, or loan development Contracts;
(xii) Contracts which contemplate the acquisition (however structured) of any corporation, partnership, limited liability company, or capital contribution toother business organization after the date hereof;
(xiii) Contracts with any Company Equityholders or their Affiliates which will survive the Closing, any person (other than any Plan or any Contract related to employment of any such Person;
(xiv) Contracts under which the Company or any Company Subsidiary) and of its Subsidiaries has advanced or loaned any amount to any of its directors or officers, or to any other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in Person outside the ordinary course of business;
(vixv) provides Contracts granting the other party to such Contract or a third party "most favored nation" status that applies to the Company or existing or future Affiliates of the Company;
(xvi) Contracts that provide for the settlement "exclusivity" or any similar requirement in favor 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 Person other than 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 businessits Subsidiaries;
(viixvii) contains Contracts containing any provision "non-solicitation", "no-hire" or covenant similar provisions that restrict the Company or any of its Subsidiaries;
(Axviii) limiting Contracts under which the Company or any of its Subsidiaries has agreed to indemnify any Person; and
(xix) Contracts entered into in connection with the settlement or other resolution of any material respect claim or Action that provides for ongoing obligations on the ability part of the Company or any of its Subsidiaries following the Closing, other than terms providing solely for confidentiality or non-disparagement.
(b) The Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services has made available to the Buyer a correct and complete copy of each Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services Material Contract (including any of the Company’s products amendments, modifications, novations, variations, or servicessupplements thereto);
(ix) . With respect to each Company Material Contract and in each case except as is a license or other Contract relating not, and would not reasonably be expected to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that isbe, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole: (i) such Company Material Contract is valid and binding on the Company or one of its Subsidiaries, but excluding Incidental Contracts;
as applicable, and is in full force and effect, (xii) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and or one of its Subsidiaries, as applicable, has performed all of the obligations required to be performed by it as of the date hereof under such Company Material Contract, (iii) neither the Company nor any of its Subsidiaries and granted has, within the previous eighteen (18) months, received written notice of any default by the Company or any of the Company its Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” , (with each such Contract listed under the corresponding clause of Section 3.22(aiv) of the Company Disclosure Letter to which such Contract is relevant). Neither neither the Company nor any of its Subsidiaries is in default under any Company Subsidiary isMaterial Contract, and (v) to the Company's knowledge, no event has occurred and no condition exists that would, with or without notice, or the lapse of time, or both, in constitute a breach of or a default under the terms of any such Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder Contract by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contractsits Subsidiaries.
Appears in 1 contract
Company Material Contracts. (a) Section 3.22(a4.16(a) of the Company Disclosure Letter sets forth Schedule contains a truecomplete list of the following types of contracts and agreements, correct and complete list, and the Company has made available to Parent true, correct and complete copies, of each Contractwhether written or oral, including amendments theretoall amendments, supplements and modifications, to which the Company or any of the Company its Subsidiaries is a party or by which it (such contracts and agreements, along with any “material contract” (as such term is bound or defined in Item 601(b)(10) of Regulation S-K under the Securities Act) filed as an exhibit to which any of their respective assets are subjecta Company SEC Report, as of the date of this Agreement, that:“Company Material Contracts”):
(i) is a partnershipany contract (other than purchase orders) for the purchase of materials, joint venturesupplies, strategic alliancegoods, collaborationservices, co-promotionequipment or other assets (A) which involved consideration or payments by the Company or any of its Subsidiaries in excess of $1,000,000 in the aggregate during the calendar year ended December 31, profit-sharing, joint research and development or similar arrangement2018, or provides for (B) which is expected to involve consideration or governs payments by the formationCompany or any of its Subsidiaries in excess of $1,000,000 in the aggregate during the calendar year ending December 31, creation, operation, management or control of such arrangement2019;
(ii) provides any contract (other than purchase orders) for the creationfurnishing of materials, incurrencesupplies, assumption goods, services, equipment or guarantee other assets (A) which involved consideration or payments to the Company or any of its Subsidiaries in excess of $1,000,000 in the aggregate during the calendar year ended December 31, 2018, or otherwise relates (B) which is expected to involve consideration or payments to the Company or any of its Subsidiaries in excess of $1,000,000 in the aggregate during the calendar year ending December 31, 2019;
(iii) all contracts concerning the establishment, management or operation of a joint venture, partnership, limited liability company or business alliance;
(iv) all contracts relating to Indebtedness of the Company or any of its Subsidiaries in excess of $100,000;
(v) all contracts containing any non-compete or exclusivity provision or any similarly restrictive provision restricting the Company’ or any of its Subsidiaries’, or, to the Company’s knowledge, upon consummation of the Transactions, Parent or any of its Subsidiaries’, ability to conduct business with respect to any line of business, Person or geographic area;
(vi) all Company SubsidiaryIP Agreements that are material to the business of the Company or any of its Subsidiaries (other than readily available “off-the-shelf” commercial licenses, or “shrink-wrap” or “click-through” agreements, terms of use or services, or similar agreements);
(vii) all contracts that contain obligations of the Company or its Subsidiaries secured by an Encumbrance (other than a Permitted Encumbrance), and interest rate or currency hedging agreements, in each case, for borrowed moneyin connection with which the aggregate actual or contingent obligations of the Company and its Subsidiaries under such agreement are greater than $100,000;
(iiiviii) grants all contracts, agreements and Leases concerning the use, occupancy, management or operation of, or evidencing any rights interests in, any Company Real Property (including all contracts, agreements and Leases listed or otherwise set forth in Section 4.12(b) of first refusalthe Company Disclosure Schedule);
(ix) all material management contracts and contracts with consultants, rights including any contracts involving the payment of first negotiation, exclusivity royalties or other similar rights amounts calculated based upon the revenues or options to any person with respect to the sale of any of the material properties or assets (including material Owned Company Intellectual Property) income of the Company or any of its Subsidiaries or income or revenues related to any product of the Company Subsidiaryor any of its Subsidiaries;
(ivx) provides for each contract pursuant to which the acquisition or disposition (whether by merger, sale of stock, sale of assets, or otherwise) of any interest in any person Company or any business of its Subsidiaries is bound that includes a continuing indemnification, “earn out” or division thereofother contingent payment obligation, or a material portion of the assets of any personin each case, other than this Agreement, (A) entered into since January 1, 2021 and which involves an asset value that could result in payments 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 (50,000 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 agreements entered into in the ordinary course of business;
(vixi) provides for the settlement of any Proceeding (A) which (x) will involve payment obligations after the date hereof in excess of $50,000 each contract between 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 covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to among the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company its Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of their respective Affiliates (other than the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Actits Subsidiaries), on the other hand, including that involves payments of more than $50,000 in any Contract pursuant to which one year;
(xii) all contracts between or among the Company or any of its Subsidiaries, on the one hand, and any Governmental Authority, on the other hand;
(xiii) any contract that grants or conveys rights of refusal, or contains “most favored nation”, “most favored customer” or similar pricing provisions, or that obligates the Company Subsidiary has or any of its Subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(xiv) each “single source” supply contract pursuant to which goods or materials that are material to the business of the Company and its Subsidiaries, taken as a whole, are required to be supplied to the Company or any of its Subsidiaries from an exclusive source; and
(xv) any contract that contains “take or pay” or similar provisions.
(i) Each Company Material Contract is a legal, valid and binding obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or its Subsidiaries party thereto and, to the Company’s knowledge, the other parties thereto, enforceable against the Company or such Subsidiaries and, to the Company’s knowledge, the other parties thereto in accordance with its terms, (ii) neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any other party thereto is in material breach or violation of, or default under, any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all Material Contract and no event has occurred or a given portion of not occurred through the Company’s or any Company Subsidiaryof its Subsidiaries’ action or inaction or, to the Company’s requirements for products knowledge, the action or services from a given inaction of any third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, notice or lapse of time or both, both would constitute a material breach or material violation of, or default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Companyunder, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, (iii) the Company and its Subsidiaries have not received any Company Subsidiary that is a party thereto andwritten claim or notice of default, to the knowledge of the Company, each other party thereto, except for termination or cancellation under any such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity ExceptionContract. The Company has furnished or made available to Parent true, correct and complete copies of all Company Material Contracts, including any amendments, waivers or changes thereto.
Appears in 1 contract
Company Material Contracts. (a) As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to any Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a “Filed Company Contract”) that has not been so filed.
(b) Section 3.22(a5.11(b) 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 subjectforth, as of the date of this Agreement, that:a true and complete list of each of the following Contracts in effect as of the date hereof and to which the Company or any of its Subsidiaries is a party or is otherwise bound (any Contract so disclosed or required to be so disclosed, a “Disclosed Contract”):
(i) any Contract (other than solely among Wholly Owned Subsidiaries of the Company) relating to Indebtedness for borrowed money or the deferred purchase price of property or to secure or guarantee any other obligation (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $20 million;
(ii) any Contract evidencing financial or commodity hedging or similar trading activities, including any interest rate or currency swaps or similar Contract to which the Company or any of its Subsidiaries is a party;
(iii) any Contract pursuant to which (A) the Company or any of its Subsidiaries grants or receives a license, covenant not to assert or similar right with respect to Intellectual Property Rights (other than commercially available licenses with respect to off-the-shelf software granted to the Company or its Subsidiaries) that are material to the operation of their respective businesses in exchange for payments to or from any third party in excess of $1 million during any twelve (12) month period or (B) any material Intellectual Property Rights are developed for or on behalf of the Company or any of its Subsidiaries that are incorporated into any material products or services of their respective businesses;
(iv) any partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development venture or other similar arrangement, agreement or provides for or governs arrangement relating to the formation, creation, operation, management or control of such arrangement;
(ii) provides for the creation, incurrence, assumption any partnership or guarantee of or otherwise relates joint venture material to Indebtedness of the Company or any Company Subsidiary, of its Subsidiaries or 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 which the Company or any of its Subsidiaries owns more than a fifteen percent (15%) voting or economic interest, or any interest valued at more than $20 million without regard to percentage voting or economic interest, except for any such Contract solely between the Company Subsidiaryand its Wholly Owned Subsidiaries or solely among the Company’s Wholly Owned Subsidiaries;
(ivv) provides for any Contract relating to the acquisition or disposition of any business or any assets that constitute a business or business unit or division of any Person (whether by merger, sale of stock, sale of assets, 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) that was entered into since January 1, 2021 and after the Applicable Date or which involves an asset value in excess otherwise contain outstanding obligations on the part of $100,000 the Company or any of its Subsidiaries with respect to indemnification (other than for customary fundamental matters) or restrictions on the Company’s or a Subsidiary’s business activities or (B) pursuant to which the Company or any material of its Subsidiaries reasonably expects to be required to pay any earn-out, deferred or other 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 businesspayments;
(vi) any Contract that contains a put, call, right of first refusal, right of first offer or similar right or obligation pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any assets constituting a business or equity interests of any Person reasonably expected to result in payments with a value in excess of $20 million in any twelve (12) month period;
(vii) any Contract that (A) purports to materially restrict the ability of the Company or any of its controlled Affiliates or, at or after the Effective Time, Parent or any of its controlled Affiliates from (1) engaging in any business or competing in any business with any Person or (2) operating its business in any manner or location, in each case, other than with respect to soliciting or hiring employees, (B) provides for the grant of “most favored nation” customer pricing or exclusive rights to any Material Customer or (C) would require the disposition of any material assets or line of business of the Company or its controlled Affiliates or acquisition of any material assets or line of business of any Person or, at or after the Effective Time, Parent or any of its controlled Affiliates;
(viii) any voting agreement, voting trust, stockholder agreement or registration rights agreement;
(ix) any collective bargaining agreement or Contract with any labor organization or works council;
(x) any Contract containing a mortgage, pledge, security agreement, deed of trust or similar Encumbrance (other than any Permitted Encumbrance) on any property or assets material to the Company and its Subsidiaries (taken as a whole);
(xi) any Contract providing for the Company’s or any of its Subsidiaries’ services to the Company’s twenty-five (25) largest customers as determined by revenues received from such Persons in the twelve (12) month period ended December 31, 2017 (each, a “Material Customer”);
(xii) any Contract that contains any provisions with respect to minimum purchase commitments of the Company or any of its Subsidiaries in excess of $3 million per year or in the next twelve (12) months, other than any Contract relating to facilities management, transportation, housekeeping and other similar services entered into in the Ordinary Course of Business;
(xiii) any Contract requiring any capital commitment or capital expenditures (including any series of related expenditures) or pursuant to which the Company or any of its Subsidiaries, individually or collectively, have any obligations (including with respect to the purchase or sale of materials, supplies, goods, equipment or other assets), in each case, in excess of $10 million per year or in the next twelve (12) months;
(xiv) any lease of personal property involving annual payments in excess of $1 million other than any lease entered into in the Ordinary Course of Business;
(xv) (A) any Contract with a Governmental Entity in the United States, and (B) any Contract with any prime contractor or subcontractor to a Governmental Entity in the United States that, to the Company’s Knowledge, (I) assumes, undertakes, or promises performance of any portion of such prime contractor’s or subcontractor’s obligations under one or more Contracts with a Governmental Entity in the United States, or (II) is necessary to the performance of any one or more such Contracts with a Governmental Entity in the United States;
(xvi) any Contract providing for any settlement of any Proceeding that (A) which imposes material future limitations on the operation of the Company and its Subsidiaries or (B) involves (x) will involve payment obligations payments after the date hereof December 31, 2017 in excess of $50,000 200,000 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;Person; and
(vii) contains any provision or covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xixvii) any Contract containing covenants limiting the freedom entered into with any director, officer or other Affiliate of the Company or any of the Company Subsidiaries to use, assert, enforceits Subsidiaries, or otherwise exploit any Owned entity in which any such Person has a direct or indirect material interest, other than a Company Intellectual Property that isBenefit Plan, individually required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
(c) A true, complete and unredacted copy of each Company Material Contract has been made available to Parent or its Representatives. Except for expirations in the aggregateOrdinary Course of Business and in accordance with the terms of such Company Material Contract, material to the each Company Material Contract is valid and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between binding on the Company or any Company Subsidiary and any sales representativeits Subsidiaries, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contractcase may be, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effect, except for such failure that as would not have not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. There is no breach or event of default under any such Contracts by the Company or its Subsidiaries or, subject as of the date hereof to the Bankruptcy Knowledge of the Company, any other party thereto, and Equity Exceptionno event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, in each case, except as would not, individually or in the aggregate, result in a Material Adverse Effect. The Company has made available Company’s facilities are, in all material respects, adequate to Parent true, correct and complete copies meet the service levels requirements of each of the Company Material ContractsContracts as currently in effect. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written indication or notice from, the counterparty to any Company Material Contract (or, to the Knowledge of the Company, any of such counterparty’s Affiliates) regarding an intent to terminate or cancel (or exercise any call or put option with respect to) any Company Material Contract (whether as a result of a change of control or otherwise).
Appears in 1 contract
Samples: Merger Agreement (Syntel Inc)
