Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”): (i) each Contract with a Top Merchant or Top Vendor; (ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018; (iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements); (iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement; (v) each Real Property Lease; (vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA; (vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business; (viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014; (ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person; (x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party; (xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business); (xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices; (xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or (xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant. (b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contract.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD)
Contracts and Commitments. (a) Except as set forth in Section 3.14(a) 3.20 of the Company PharMerica Disclosure Schedule sets Statement or as set forth as an exhibit in a correct and complete list of the following Contracts to which the Company or PharMerica SEC Report filed since December 31, 1997, neither PharMerica nor any of its Subsidiaries is a party to any existing contract, obligation or otherwise bound (the Contracts required to be set forth commitment of any type in Section 3.14(a) any of the Company Disclosure Schedule collectivelyfollowing categories:
3.20.1 contracts for the purchase by PharMerica or any of its Subsidiaries of medicines, the “Material Contracts”):
materials, supplies or equipment which are not cancelable upon 90 days' or less notice and which either (i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements have not been entered into in the ordinary course of businessbusiness and consistent with past practice or (ii) provide for purchase prices substantially greater than those presently prevailing for such materials, each Contract that involved the expenditure supplies or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31equipment, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment contracts obligating PharMerica or its Subsidiaries to make capital expenditures in excess of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)$200,000;
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to 3.20.2 contracts under which the Company PharMerica or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Propertyhas, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements except by way of endorsement of negotiable instruments for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries collection in the ordinary course of business and consistent with past practice, become absolutely or contingently or otherwise liable for (Ci) referral agreements and reseller agreements the performance of any other person, firm or corporation under a contract, or (ii) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation;
3.20.3 powers of attorney outstanding from PharMerica or any of its Subsidiaries other than as issued in the ordinary course of businessbusiness and consistent with past practice with respect to customs, insurance, patent, trademark or tax matters, or to agents for service of process;
3.20.4 contracts under which any amount payable by PharMerica or any of its Subsidiaries is dependent upon, or calculated in accordance with, the revenues or earnings (viii) each Contract or any component thereof of PharMerica or any of its Subsidiaries;
3.20.5 contracts with any director, officer, employee or affiliate of PharMerica or any of its Subsidiaries other than in such person's capacity as a director, officer or employee of PharMerica or any of its Subsidiaries;
3.20.6 contracts which limit or restrict where PharMerica or any of its Subsidiaries may conduct its business or the type or line of business in which PharMerica or any of its Subsidiaries may engage;
3.20.7 contracts with any party for the (A) disposition (whether by merger, consolidation, sale loan of equity money or assets availability of credit to or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business from PharMerica or any Equity Interests of its Subsidiaries (whether except credit extended by merger, consolidation, purchase PharMerica or any of equity or assets or otherwise) of any other Person (other than its Subsidiaries to its customers in the ordinary course of businessbusiness and consistent with past practice), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required 3.20.8 any material hedging, option, derivative or other similar transaction. True and complete copies of all contracts, obligations and commitments listed in Section 3.20 of the PharMerica Disclosure Statement have been delivered or made available to be filed with Bergen. None of PharMerica or its Subsidiaries or, to the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1)knowledge of PharMerica, (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract any other party is in full force and effect and is a legal, valid, binding and enforceable obligation breach of or default under any of the Company contracts, obligations and commitments listed in Section 3.20 of the PharMerica Disclosure Statement or its applicable Subsidiary under any other PharMerica Contracts (and, to the knowledge of PharMerica, no facts or circumstances exist which could reasonably support the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any assertion of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither except for breaches and defaults which would not, singly or in the Company nor any of its Subsidiaries has received written notice of default or termination under any aggregate with all other such breaches, have a PharMerica Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Pharmerica Inc), Merger Agreement (Bergen Brunswig Corp)
Contracts and Commitments. Except to the extent such documents are included in the GBC SEC Reports, Section 3.18 of the GBC Disclosure Schedule contains as of the date of this Agreement (and shall be supplemented by GBC pursuant to Section 5.10 hereof to contain at the Closing Date) a list of each of the following documents, a true and correct copy of each of which has been made available to Cathay Bancorp (provided, however, that no document referenced in Section 3.16 shall be required to be listed or provided under this Section 3.18):
(a) Section 3.14(aany outstanding "extension of credit" to any "Insider" of General Bank, as such terms are defined in Federal Reserve Regulation O;
(b) of each contract or agreement (not otherwise included in the Company GBC Disclosure Schedule sets forth or specifically excluded therefrom in accordance with the terms of this Agreement) involving goods or services and which (i) has a correct term of one year or more and complete list an annual value of at least $100,000 (excluding telephone and utility service agreements) or (ii) allows for the following Contracts to which the Company or any sharing of information regarding customers of GBC and its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectivelyother than with customer consent, the “Material Contracts”):including but not limited to;
(i) each Contract with a Top Merchant agreement in which GBC or Top Vendorits Subsidiaries agreed to guaranty an obligation of, or indemnify, any officer, director, employee or agent of GBC or its Subsidiaries;
(ii) other than merchant agreements entered into in each agreement containing any covenant limiting the ordinary course right of business, each Contract that involved the expenditure GBC or receipt by the Company and its Subsidiaries to engage in any line of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 business or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018compete with any person;
(iii) each Contract with agreement relating to the servicing of loans and each mortgage forward commitment and similar agreement pursuant to which GBC or any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)its Subsidiaries sells to others mortgages that they originate;
(iv) each Contract evidencing Company Indebtednesscontract relating to the purchase or sale of financial or other futures, including or any loan put or credit agreementcall option relating to cash, security agreement, guaranty, indenture, mortgage, pledge, conditional sale securities or title retention agreement, equipment obligation commodities and each interest rate swap agreement or lease purchase agreementother agreement relating to the hedging of interest rate risks and each agreement or arrangement described in Section 3.14(d) hereof;
(v) each Real Property Leasea list of all salaries and bonuses provided by GBC and its Subsidiaries to any employee, officer or director who earned in salary and bonus in excess of $100,000 during the calendar year 2002;
(vic) each Contract contract or commitment (other than GBC Permitted Liens and other than those described in Section 3.14) affecting ownership of or title to, real property which is currently owned by GBC or any GBC Subsidiary;
(d) the articles of incorporation and bylaws and specimen certificates of each type of security issued by GBC and General Bank;
(e) each other contract or commitment providing for payment based in any manner upon outstanding loans or profits of GBC or any GBC Subsidiary;
(f) each lease or license with respect to real or tangible personal property, whether as lessor, lessee, licensor or licensee, with annual rental or other payments due thereunder in excess of $100,000 to which GBC or any Card Association GBC Subsidiary is a party, which does not expire within six months from the date hereof and cannot be terminated upon 30 days (or NACHA and/or each Contract less) written notice without penalty;
(g) all consulting, financial advisory, investment banking and professional services contracts other than legal counsel to which GBC or its Subsidiaries is a party and in which GBC or its Subsidiaries expect to pay more than $100,000 during the calendar year 2003;
(h) all judgments, orders, injunctions, court decrees or settlement agreements arising out of or relating to the labor and employment practices or decisions of GBC or any GBC Subsidiary which, by their terms, continue to bind or affect GBC or any GBC Subsidiary;
(i) all orders, decrees, memoranda, agreements or understandings with a member regulatory agencies binding upon or affecting the current operations of a Card Association enabling the Company’s GBC or any GBC Subsidiary or any of its Subsidiaries’ participation their directors or officers in such Card Association or NACHAtheir capacities as such;
(viij) each material license all registered trademarks, trade names, service marks, patents or other material Contract pursuant to which copyrights that are owned by GBC or any GBC Subsidiary;
(k) list of all bank-owned life insurance policies (each, a "BOLI POLICY") owned by GBC or any Subsidiary of GBC insuring the Company life of any officer, employee or director of GBC and naming GBC or any of its Subsidiaries grants or receives rights as the beneficiary in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers event of the Company death of the insured officer, employee or director, and copies of related insurance policy applications and of consent forms signed by the insured officer, employee or director authorizing GBC or any Subsidiary of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed GBC to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantBOLI Policy.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (GBC Bancorp), Merger Agreement (Cathay Bancorp Inc)
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Except as set forth on Schedule sets forth 3.17(a), neither MetroCorp nor any Subsidiary thereof is a correct and complete list party to or bound by any of the following Contracts to which the Company (whether written or any of its Subsidiaries is a party oral, express or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”implied):
(i) each Contract employment contracts, change-in-control agreements or severance arrangements (including, without limitation, any collective bargaining contract or union agreement or agreement with a Top Merchant or Top Vendoran independent consultant);
(ii) bonus, stock option, restricted stock, stock appreciation right or other employee benefit arrangement, other than merchant agreements entered into in the ordinary course of businessany deferred compensation arrangement or any profit-sharing, each Contract that involved the expenditure pension or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 retirement plan or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018welfare plan;
(iii) each Contract any material lease or license with respect to any Related Party (other than (A) offer letters for employment on an at-will basisproperty, (B) customary confidentialityreal or personal, assignment of inventions and/or noncompetition whether as landlord, tenant, licensor or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)licensee;
(iv) each Contract evidencing Company Indebtedness, including any loan a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale required to be disclosed by MetroCorp on a Current Report on Form 8-K) to be performed in whole or title retention agreement, equipment obligation in part after the date of this Agreement that has not been filed or lease purchase agreementincorporated by reference in the MetroCorp SEC Reports;
(v) each Real Property Leasecontract or commitment for capital expenditures with payments aggregating $25,000 or more;
(vi) each Contract with any Card Association material contract or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries commitment made in the ordinary course of business and for the purchase of materials or supplies or for the performance of services over a period of more than sixty (C60) referral agreements and reseller agreements days after the date of this Agreement;
(vii) a shared loss agreement (including any related or ancillary agreement) with the FDIC;
(viii) contract or option to purchase or sell any real or personal property other than any contract for the purchase of personal property in the ordinary course of business;
(viiiix) each Contract for contract, agreement or letter with respect to the management or operations of MetroCorp or the Banks imposed by any bank regulatory authority having supervisory jurisdiction over MetroCorp or the Banks;
(Ax) disposition (whether note, debenture, agreement, contract or indenture related to the borrowing by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business MetroCorp or any Equity Interests (whether by merger, consolidation, purchase Subsidiary of equity or assets or otherwise) of any other Person (money other than those entered into in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning guaranty of any obligation for the establishment borrowing of money, excluding endorsements made for collection, repurchase or operation resell agreements, letters of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements credit and reseller agreements guaranties made in the ordinary course of business);
(xii) each Contract that is an exchange tradedagreement with or extension of credit to any executive officer or director of MetroCorp or the Banks or holder of ten percent (10%) or more of the issued and outstanding MetroCorp Shares, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index affiliate of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicessuch person;
(xiii) each Contract entered into agreement with any executive officer or director of MetroCorp or the Banks or holder of ten percent (10%) or more of the issued and outstanding MetroCorp Shares or any affiliate of such person, relating to bank-owned life insurance (“BOLI”);
(xiv) contracts, other than the foregoing, with payments aggregating $100,000 or more not made in connection the ordinary course of business and not otherwise disclosed in this Agreement;
(xv) any agreement containing covenants that limit the ability of MetroCorp or any of its Subsidiaries to compete in any line of business or with a material settlement under which any Acquired Company has material outstanding obligationsperson, or that involve any restriction on the geographic area in which, or method by which, MetroCorp (including any successor thereof) or any of its Subsidiaries may carry on its business (other than as may be required by law or any regulatory agency);
(xvi) any data processing services agreement or contract that may not be terminated without payment or penalty upon notice of 30 days or less; or
(xivxvii) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 any agreement pursuant to Items 601(b)(1), (2), (4), (9) which MetroCorp or (10) any of Regulation S-K under the Securities Act as if the Company was the registrantits Subsidiaries may become obligated to invest in or contribute capital to any entity.
(b) Except Each contract or commitment set forth in Schedule 3.17 is valid and binding on MetroCorp or its Subsidiaries, as the case may be, and to MetroCorp’s Knowledge, the other parties thereto, enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally and general equitable principles. MetroCorp has performed in all material respects all obligations required to be performed by it to date and is not had in default under, and would not be no event has occurred which, with the lapse of time or action by a third party is reasonably likely to have, individually or result in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contractindenture, andmortgage, contract, lease or other agreement to the knowledge which MetroCorp or any Subsidiary thereof is a party or by which MetroCorp or any Subsidiary thereof is bound and would result in a financial exposure of the Company$25,000 or more, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; provision of MetroCorp Constituent Documents. A true and (iv) as complete copy of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contracteach contract or commitment set forth in Schedule 3.17 has been delivered or made available to East West.
Appears in 2 contracts
Samples: Merger Agreement (East West Bancorp Inc), Merger Agreement (MetroCorp Bancshares, Inc.)
Contracts and Commitments. Except as set forth on Section 4.12 of the Disclosure Schedule, neither ISI nor any Subsidiary of ISI is a party to any of the following agreements currently in effect:
(a) Section 3.14(aany agreement (i) under which any of ISI or its Subsidiaries has created, incurred, assumed or guaranteed Indebtedness (under clause (ii) through (ix) of the Company Disclosure Schedule sets forth a correct and complete list definition thereof) or imposing an Encumbrance on any of the following Contracts assets or properties of ISI or its Subsidiaries other than a Permitted Encumbrance, in each case, other than the entry into agreements in connection with the Debt Financing, or (ii) whereby any of ISI or its Subsidiaries has an obligation to which the Company make an investment in or loan to any Person;
(b) any agreement entered into by ISI or any of its Subsidiaries is involving the merger with, acquisition of, or purchase of any business, stock, equity, property or assets of any Person, in each case other than any intercompany agreements involving the contribution of stock or equity of a party Subsidiary to ISI;
(c) any agreement pursuant to which any of ISI or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
its Subsidiaries leases any (i) each Contract with a Top Merchant ISI Leased Real Property requiring the payment of more than $150,000 per year, or Top Vendor(ii) personal property requiring the payment of more than $10,000 per year.
(d) any agreement that requires any of ISI or any of its Subsidiaries to purchase all of its requirements for any goods or services exclusively from one or more parties;
(iie) any license of Intellectual Property by or to ISI or its Subsidiaries, except for licenses implied by the sale of goods, shrink-wrap, click-wrap software licenses, end-user licenses and licenses to software generally commercially available (in each case, with a value of less than $15,000) and any other agreement pursuant to which ISI or any of its Subsidiaries’ ability to use, disclose, license or enforce any Intellectual Property is affected other than merchant use or disclosure that is limited by confidentiality or non-disclosure agreements entered into in the ordinary course of business, each Contract business (including in connection with acquisition opportunities) related to Intellectual Property that involved the expenditure is neither owned nor licensed by ISI or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018Subsidiaries;
(iiif) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to agreement under which the Company ISI or any of its Subsidiaries grants is obligated to pay royalties, commissions or receives rights in or similar payments to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products commissions paid to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements employees in the ordinary course of business);
(xiig) each Contract that is an exchange tradedany stock purchase plan, over the counter stock option plan, phantom plan or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicessimilar plan;
(xiiih) each Contract entered into any agreement (i) containing a “most favored customer” or similar provision or (ii) involving the settlement, release, compromise or waiver of any material rights, claims, obligations, duties or liabilities in connection with any Litigation involving ISI or any of its Subsidiaries arising in the past twelve (12) months;
(i) any agreement that contains or provides for an undertaking by ISI or its Subsidiary to pay any liquidated damages or similar remedy in the event of any failure to perform or late performance of such contract;
(j) any (i) agreement pertaining to employment arrangements with any officer, director, or employee of ISI that provides for annual compensation in excess of $100,000, and (ii) agreement providing for severance, retention, change in control or other similar payments or benefits;
(k) any ISI Related Party Agreement;
(l) (i) any power of attorney granted by ISI or its Subsidiaries that is currently effective and outstanding, and (ii) any letter of credit, performance bond or similar instrument that is currently outstanding;
(m) any agreement relating to any partnership, joint venture, strategic alliance or sharing of profits;
(n) any collective bargaining agreement or any other labor-related contract or understanding with any labor union, labor organization or works council (each, a material settlement under which “ISI Collective Bargaining Agreement”);
(o) any Acquired Company has material outstanding obligationsagreement containing covenants materially restricting or limiting the freedom of ISI or any Subsidiary to engage in any line of business or in any geography or territory; or
(xivp) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1)any other agreement, (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company involving payments to or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, by ISI or any of its Subsidiaries in excess of $2,000,000 per year (other than purchase orders and statements of work entered into in the ordinary course of business) or (ii) to the extent material and outside of the ordinary course of business, that contains or provides for an undertaking by ISI or its Subsidiaries to indemnify or hold harmless another Person. Each of the contracts set forth or required to be set forth on Section 4.12 of the Disclosure Schedule or on a Schedule cross-referenced within such Schedule or any agreement with any ISI Top Customer or any agreement with any ISI Top Supplier (“ISI Material Agreements”) is the legal, valid and binding obligation of ISI and/or its Subsidiaries, enforceable against them in accordance with its terms, except as such enforceability may be limited by General Enforceability Exceptions. Except as set forth on Section 4.12(q) of the Disclosure Schedule, neither ISI nor any of its Subsidiaries, nor, to the knowledge of the CompanyISI’s Knowledge, any other party to any Material Contract, is in material violation, material breach or material default underviolation of, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, (with or without notice or lapse of time or both) default under, would constitute any such violationISI Material Agreement, breach nor has ISI or default; (iii) neither the Company nor any of its Subsidiaries received (or has received written notice any knowledge of) any claim of any such breach, violation or default or any notice terminating or threatening the termination under of any ISI Material Contract; Agreement. ISI and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived are not parties to any material rights under ISI Material Agreements that are oral. ISI has delivered or made available to ISH true and complete copies of all ISI Material Agreements, including any Material Contractamendments thereto.
Appears in 2 contracts
Samples: Contribution Agreement (Interior Logic Group Holdings, LLC), Contribution Agreement (Interior Logic Group Holdings, LLC)
Contracts and Commitments. (a) Section 3.14(aAs of the date hereof, ReShape is not a party to nor bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of the Company Disclosure Schedule sets forth a correct and complete list Regulation S-K of the following Contracts SEC) with respect to which the Company ReShape or any of its Subsidiaries is a party or otherwise bound (the Contracts that was required to be set forth in Section 3.14(a) be, but has not been, filed with the SEC with ReShape’s Annual Report on Form 10-K for the year ended December 31, 2019, or any ReShape SEC Documents filed after the date of filing of such Form 10-K until the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top Vendordate hereof;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition relating to the disposition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company acquisition by ReShape or any of its Subsidiaries grants or receives rights in or to use any of a material Intellectual Propertyamount of assets (1) after the date of this Agreement, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business)business consistent with past practice, or (C2) acquisition prior to the date hereof, which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of Equity Interests them, to result in claims in excess of any Acquired Company $100,000 or (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ixB) each Contract that, by its terms, prohibits the Company pursuant to which ReShape or any of its Subsidiaries from (A) entering into will acquire any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an material ownership interest in any other Personperson or other business enterprise other than ReShape’s Subsidiaries;
(xiii) each collective bargaining agreement or Contract with any labor union, trade organization or other employee representative body;
(iv) Contract establishing any joint ventures, partnerships or similar arrangements;
(v) Contract (A) prohibiting or materially limiting the right of ReShape to compete in which the Company any line of business or to conduct business with any of its Subsidiaries has granted “most favored nation” pricing provisions Person or exclusive marketing or distribution rights relating to in any servicegeographical area, product or territory or has agreed (B) obligating ReShape to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partyparty or (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of ReShape on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or similar agreement under which ReShape has granted a Person an exclusive geographical area and under which ReShape paid commissions less than $100,000 to such Person in 2019 or from whom ReShape received less than $100,000 from the sale of product to said Person in 2019;
(xivi) each Contract concerning pursuant to which ReShape or any of its Subsidiaries (i) licenses any material Intellectual Property from another Person that is used by ReShape or one of its Subsidiaries in the establishment conduct of its business as currently conducted that could require payment by ReShape or operation any Subsidiary of a partnershiproyalties or license fees exceeding $100,000 in any twelve (12) month period, joint ventureor (ii) licenses ReShape Intellectual Property to another Person, profit sharing or similar enterprise (other than referral agreements and reseller agreements except licenses provided to direct customers in the ordinary course of business;
(vii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit of $100,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice;
(viii) Contract providing for any guaranty by ReShape or any of its Subsidiaries of third-party obligations (under which ReShape or any of its Subsidiaries has continuing obligations as of the date hereof) of $100,000 or more, other than any guaranty by ReShape or any of its Subsidiaries’ obligations;
(ix) Contract between ReShape, on the one hand, and any Affiliate of ReShape (other than a Subsidiary of ReShape), on the other hand (other than a ReShape Plan);
(xiix) each Contract that is an exchange tradedcontaining a right of first refusal, over the counter right of first negotiation or right of first offer in favor of a party other swap, cap, floor, collar, futures contract, forward contract, option than ReShape or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicesits Subsidiaries;
(xiiixi) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligationsReShape and ReShape’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $100,000 during the current or a subsequent fiscal year; or
(xivxii) will be required Contract to be filed with enter into any of the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantforegoing.
(b) Obalon has been given access to a true and correct copy of all written ReShape Material Contracts, together with all material amendments, waivers or other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral ReShape Material Contract.
(c) Except as has not had and would not be reasonably likely to havenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: Effect on ReShape, (i) ReShape is not in default under any Contract listed, or required to be listed, in Section 3.12(a) of the ReShape Disclosure Schedule (each, a “ReShape Material Contract” and, collectively, the “ReShape Material Contracts”) and (ii) to ReShape’s knowledge, as of the date hereof, the other party to each of the ReShape Material Contracts is not in default thereunder. Each ReShape Material Contract is legal and in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary against ReShape and, to the knowledge of the CompanyReShape knowledge, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as thereto. As of the date hereof, neither no party to any ReShape Material Contract has given any written notice, or to the Company nor its Subsidiaries have waived knowledge of ReShape, any material rights under notice (whether or not written) of termination or cancellation of any ReShape Material ContractContract or that it intends to seek to terminate or cancel any ReShape Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
Appears in 2 contracts
Samples: Merger Agreement (Obalon Therapeutics Inc), Merger Agreement (ReShape Lifesciences Inc.)
Contracts and Commitments. Except as set forth on Section 5.12 of the Disclosure Schedule, neither ILG nor any Subsidiary of ILG is a party to any of the following agreements currently in effect:
(a) Section 3.14(aany agreement (i) under which any of ILG or its Subsidiaries has created, incurred, assumed or guaranteed Indebtedness or imposing an Encumbrance or any of the Company Disclosure Schedule sets forth assets or properties of ILG or its Subsidiaries other than a correct and complete list Permitted Encumbrance, in each case, other than the entry into agreements in connection with the Debt Financing, or (ii) whereby any of the following Contracts ILG or its Subsidiaries has an obligation to which the Company make an investment in or loan to any Person;
(b) any agreement entered into by ILG or any of its Subsidiaries is involving the merger with, acquisition of, or purchase of any business, stock, equity, property or assets of any Person, in each case other than any intercompany agreements involving the contribution of stock or equity of a party Subsidiary to ILG;
(c) any agreement pursuant to which any of ILG or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
its Subsidiaries leases any (i) each Contract with a Top Merchant ILG Leased Real Property requiring the payment of more than $150,000 per year, or Top Vendor(ii) personal property requiring the payment of more than $10,000 per year.
(d) any agreement that requires any of ILG or its Subsidiaries to purchase all of its requirements for any goods or services exclusively from one or more parties;
(iie) any license of Intellectual Property by or to ILG or any of its Subsidiaries, except for licenses implied by the sale of goods, shrink-wrap, click-wrap software licenses, end-user licenses and licenses to software generally commercially available (in each case, with a value of less than $15,000) and any other agreement pursuant to which ILG or any of its Subsidiaries’ ability to use, disclose, license or enforce any Intellectual Property is affected other than merchant use or disclosure that is limited by confidentiality or non-disclosure agreements entered into in the ordinary course of business, each Contract business (including in connection with acquisition opportunities) related to Intellectual Property that involved the expenditure is neither owned nor licensed by ILG or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018Subsidiaries;
(iiif) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to agreement under which the Company ILG or any of its Subsidiaries grants is obligated to pay royalties, commissions or receives rights in or similar payments to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products commissions paid to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements employees in the ordinary course of business);
(xiig) each Contract that is an exchange tradedany stock purchase plan, over the counter stock option plan, phantom plan or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicessimilar plan;
(xiiih) each Contract entered into any agreement (i) containing a “most favored customer” or similar provision or (ii) involving the settlement, release, compromise or waiver of any material rights, claims, obligations, duties or liabilities in connection with any Litigation involving ILG or any of its Subsidiaries arising in the past twelve (12) months;
(i) any agreement that contains or provides for an undertaking by ILG or its Subsidiary to pay any liquidated damages or similar remedy in the event of any failure to perform or late performance of such contract;
(j) any (i) agreement pertaining to employment arrangements with any officer, director, or employee of ILG that provides for annual compensation in excess of $100,000, and (ii) agreement providing for severance, retention, change in control or other similar payments or benefits;
(k) any ILG Related Party Agreement;
(i) any power of attorney granted by ILG or its Subsidiaries that is currently effective and outstanding, and (ii) any letter of credit, performance bond or similar instrument that is currently outstanding;
(m) any agreement relating to any partnership, joint venture, strategic alliance or sharing of profits;
(n) any collective bargaining agreement or any other labor-related contract or understanding with any labor union, labor organization or works council (each, a material settlement under which “ILG Collective Bargaining Agreement”);
(o) any Acquired Company has material outstanding obligationsagreement containing covenants materially restricting or limiting the freedom of ILG or any Subsidiary to engage in any line of business or in any geography or territory; or
(xivp) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1)any other agreement, (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company involving payments to or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, by ILG or any of its Subsidiaries in excess of $2,000,000 per year (other than purchase orders and statements of work entered into in the ordinary course of business) or (ii) to the extent material and outside of the ordinary course of business, that contains or provides for an undertaking by ILG or its Subsidiaries to indemnify or hold harmless another Person. Each of the contracts set forth or required to be set forth on Section 5.12 of the Disclosure Schedule or on a Schedule cross-referenced within such Schedule or any agreement with any ILG Top Customer or any agreement with any ILG Top Supplier (“ILG Material Agreements”) is the legal, valid and binding obligation of ILG and/or its Subsidiaries, enforceable against them in accordance with its terms, except as such enforceability may be limited by General Enforceability Exceptions. Except as set forth on Section 5.12(q) of the Disclosure Schedule, neither ILG nor any of its Subsidiaries, nor, to the knowledge of the CompanyILG’s Knowledge, any other party to any Material Contract, is in material violation, material breach or material default underviolation of, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, (with or without notice or lapse of time or both) default under, would constitute any such violationILG Material Agreement, breach nor has ILG or default; (iii) neither the Company nor any of its Subsidiaries received (or has received written notice any knowledge of) any claim of any such breach, violation or default or any notice terminating or threatening the termination under of any ILG Material Contract; Agreement. ILG and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived are not parties to any material rights under ILG Material Agreements that are oral. ILG has delivered or made available to Faraday true and complete copies of all ILG Material Agreements, including any Material Contractamendments thereto.
Appears in 2 contracts
Samples: Contribution Agreement (Interior Logic Group Holdings, LLC), Contribution Agreement (Interior Logic Group Holdings, LLC)
Contracts and Commitments. (a) Section 3.14(a) of Except as filed with the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company HealthAxis SEC Documents or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be as set forth in Section 3.14(a6.16(a) of the Company HealthAxis Disclosure Schedule collectivelyLetter, neither HealthAxis nor any of the “Material Contracts”):HealthAxis Subsidiaries has, or is party to or is bound by:
(i) each Contract with a Top Merchant any consulting agreement, contract or Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with commitment under which any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition firm or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s organization provides consulting services to HealthAxis or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or the HealthAxis Subsidiaries other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viiiii) each Contract for the any fidelity or surety bond or completion bond;
(Aiii) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion guaranty of the assets obligations of a third party;
(iv) any agreement, contract, commitment, transaction or business series of the Company and its Subsidiaries, taken as a whole, (B) acquisition of transactions for any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (purpose other than in the ordinary course of business), HealthAxis’ or (C) acquisition any of Equity Interests the HealthAxis Subsidiaries’ business relating to capital expenditures or commitments or long term obligations in excess of any Acquired Company $150,000 (other than by the Company SVB Loan Agreement and any amendment, extension or its Subsidiaries, and excluding Company Profits Units granted in the ordinary courserenewal thereof or of any related documents), in each case, entered into since January 1, 2014;
(ixv) each Contract thatany agreement, by its terms, prohibits contract or commitment relating to the Company disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of HealthAxis’ or any of its Subsidiaries from (A) entering into any line of the HealthAxis Subsidiaries’ business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(xvi) each Contract in which the Company any mortgages, indentures, loans or any of its Subsidiaries has granted “most favored nation” pricing provisions credit agreements, security agreements or exclusive marketing other arrangements or distribution rights instruments relating to the borrowing of money or extension of credit, including capital leases and also guaranties referred to in clause (iii) hereof (other than the SVB Loan Agreement and any serviceamendment, product extension or territory renewal thereof or has agreed to purchase or otherwise obtain of any material product or service exclusively from a single party or sell any material product or service exclusively to a single partyrelated documents);
(xivii) each Contract concerning any purchase order or contract for the establishment purchase of inventory or operation of a partnershipother materials involving $150,0000 or more;
(viii) any distribution, joint venturemarketing or development agreement, profit sharing or similar enterprise (other than referral agreements and reseller agreements made in the ordinary course of business);
(ix) any assignment, license or other agreement with respect to any form of intangible property, excluding agreements made in the ordinary course of business;
(x) any agreement or contract involving the sharing of profits and losses by HealthAxis or any of the Subsidiaries;
(xi) any agreement, contract or commitment that involves $150,000 or more or is not cancellable without penalty upon 30 days notice, excluding agreements made in the ordinary course of business;
(xii) each Contract any contract containing covenants that is an exchange traded, over restrict or limit the counter ability of HealthAxis or other swap, cap, floor, collar, futures contract, forward contract, option any HealthAxis Subsidiaries to engage in any line of business or other derivative financial instrument or Contract, based on compete with any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;person; or
(xiii) each Contract entered into any “material contracts” within the meaning set forth in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10Item 601(b)(10) of Regulation S-K promulgated under the Securities Act Act. The contracts and other documents referred to in (i) through (xiii) above and all contracts and documents required to be filed with any HealthAxis SEC Documents shall be referred to herein as if the Company was the registrant“HealthAxis Contracts”.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, aggregate have a HealthAxis Material Adverse Effect: (i) each Material Contract is , all HealthAxis Contracts are valid and binding on HealthAxis and, to the best of the knowledge of HealthAxis, on the other parties thereto, and are in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary against HealthAxis and, to the best of the knowledge of HealthAxis, against the Companyother parties thereto, each other party thereto (subject in each case accordance with their respective terms. Except as disclosed in Section 6.16(b) of the HealthAxis Disclosure Letter, no approval or consent of, or notice to any Person the failure of which to obtain would have a HealthAxis Material Adverse Effect is needed in order that the HealthAxis Contracts shall continue in full force and effect in accordance with their terms without penalty, acceleration or rights of early termination following the consummation of the transactions contemplated by this Agreement. Except to the Enforcement Exceptions); (ii) neither the Company, extent any of its Subsidiaries the following would not individually or in the aggregate have a HealthAxis Material Adverse Effect, HealthAxis is not in violation of, breach of or default under any HealthAxis Contract nor, to the knowledge of the CompanyHealthAxis’ knowledge, is any other party to any Material HealthAxis Contract, is . Except as set forth in material violation, material breach or material default under, any Material Contract, and, to the knowledge Section 6.16 of the CompanyHealthAxis Disclosure Letter, there exists no condition HealthAxis is not in violation or event which, after notice, lapse breach of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and HealthAxis Contract (ivincluding leases of real property) as relating to non-competition, indebtedness, guarantees of the date hereofindebtedness of any other Person, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractemployment, or collective bargaining.
Appears in 2 contracts
Samples: Merger Agreement (BPO Management Services), Merger Agreement (Healthaxis Inc)
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule 3.08 sets forth a correct and complete list of the following Contracts each Contract to which the Company any Purchased Subsidiary or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):by which it is bound:
(i) each Contract with a Top Merchant for the purchase of materials, supplies, goods, services, equipment or Top Vendor;
other assets (ii) other than merchant agreements entered into purchase orders or Contracts for services in the ordinary course of business) which (A) has resulted in payments during the period from January 1, 2010 to October 31, 2010 or (B) pursuant to its terms, requires payments to be made during the twelve months immediately following October 31, 2010, in each Contract that involved the expenditure or receipt case, of at least $275,000 by the Company and Purchased Subsidiaries and/or their Subsidiaries or, with respect to the Indian Company, of at least $100,000;
(ii) for the sale by any Purchased Subsidiary or any of its Subsidiaries of more than $500,000 in the aggregate materials, supplies, goods, services, equipment or other assets that (A) has generated billed revenue during the twelve-period from January 1, 2010 to October 31, 2010 or (B) pursuant to its terms, requires the counterparty to such Contract to make payments of billed revenue during the twelve month period ending on December immediately following October 31, 2017 2010, in each case, of at least $275,000 to such Purchased Subsidiary or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than or, with respect to the Indian Company, at least $500,000 in the aggregate in the twelve-month period ending December 31, 2018100,000;
(iii) each that is a note, debenture, bond, equipment trust, letter of credit, loan or other Contract with any Related Party representing Indebtedness for Borrowed Money or lending of money (other than (A) offer letters to employees for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements travel expenses in the ordinary course of business;
(viii) each Contract or between and among the Purchased Subsidiaries or their Subsidiaries, or otherwise is an agreement or arrangement for the (A) disposition (whether by mergera line of credit or guarantee, consolidation, sale of equity pledge or assets or otherwise) of any significant portion undertaking of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) Indebtedness of any other Person (other than in a Purchased Subsidiary or its Subsidiaries);
(iv) that is a collective bargaining or similar labor agreement;
(v) that is an agreement by which the ordinary course of business), or (C) acquisition of Equity Interests use of any Acquired Company Intellectual Property material to the Business is licensed to any Person (other than licenses granted by the Company Purchased Subsidiaries or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its their Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which of the Company or any of its Purchased Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements their Subsidiaries in the ordinary course of business);
(xiivi) each Contract that is an exchange tradedagreement by which any Purchased Subsidiary or their Subsidiaries licenses from another Person the use of any Intellectual Property material to the Business (other than agreements for commercially available software that is not incorporated into the Pinnacle software and redistributed to customers or clients by the Purchased Subsidiary or their Subsidiaries and having a replacement cost and annual license fee as of October 31, over 2010 of less than $275,000);
(vii) that relates to the counter formation, creation, operation, management or control of any joint venture, partnership or limited liability company;
(viii) that is with any customer of any Purchased Subsidiary or any of its Subsidiaries that provides for any “most favored nation” pricing or any other similar pricing;
(ix) that is an agreement that confers to any customer of the Purchased Subsidiaries or their Subsidiaries any ownership of any material software (including source code) or other swap, cap, floor, collar, futures contract, forward contract, option material Intellectual Property owned or other derivative financial instrument developed by or Contract, based on any commodity, security, instrument, asset, rate behalf of the Purchased Subsidiaries or index their Subsidiaries;
(x) that contains a covenant not to compete that limits the conduct of the Business;
(xi) that provides for the acquisition or disposition of any kind business (whether by merger, sale of stock or nature whatsoeverassets or otherwise) or issuance of any Securities at any time since January 1, whether tangible 2009;
(xii) that is entered into with (a) Seller, (b) any Affiliate of Seller or intangible(c) any employee, including currenciesofficer or director of the Purchased Subsidiaries, interest rates, foreign currency and indices;any of their Subsidiaries or Seller; or
(xiii) each Contract entered into in connection with that is a material settlement under which amendment or material modification to any Acquired Company has material outstanding obligations; or
of the foregoing currently in effect. Each such Contract described in clauses “(xivi)” through “(xiii)” above is described in Schedule 3.08(a) will be required and referred to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company herein as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant“Material Contract.”
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Each Material Contract is is, and immediately following the Closing will be, valid, binding and in full force and effect and is a legal, valid, binding and enforceable obligation in accordance with its terms with respect to any Purchased Subsidiary or any of the Company or its applicable Subsidiary their Subsidiaries party thereto and, to the knowledge of the CompanySeller’s knowledge, each other party thereto (subject to such Contract, in each case subject to the Enforcement Exceptions); (ii) neither limitations of bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the Company, availability of specific performance and other equitable remedies. No Purchased Subsidiary or any of its their Subsidiaries noris, or will be, immediately following the Closing, nor to the Seller’s knowledge of the Company, is any other party to thereto, in breach, violation or default in any material respect under any such Material Contract. None of the Purchased Subsidiaries or their Subsidiaries has received or given any written or to Seller’s knowledge, is in material violation, oral notice or claim of any material breach or material violation of, or default under, any Material Contract. The Purchased Subsidiaries and their Subsidiaries have not received or given any written, andor to Seller’s knowledge, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written oral notice of default an intention to terminate, not renew or termination under any Material Contract; and challenge the validity or enforceability of, or to request a material refund (ivother than refunds accounted for in the Financial Statements) as of the date hereofunder, neither the Company nor its Subsidiaries have waived any material rights under any Material Contract.
(c) The Purchased Subsidiaries have made available to Buyer copies of all Material Contracts.
Appears in 2 contracts
Samples: Securities Purchase Agreement (M & F Worldwide Corp), Securities Purchase Agreement (Harland Clarke Holdings Corp)
Contracts and Commitments. (a) Section 3.14(a3.09(a) of the Company Disclosure Schedule Schedules, sets forth a correct complete and complete accurate list of each of the following Contracts to which the any Group Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required any Contract of a nature described below to be set forth in Section 3.14(a) of the which any Group Company Disclosure Schedule is a party or otherwise bound, being referred to herein as a “Material Contract” and, collectively, as the “Material Contracts”):
(i) each any Contract with relating to the borrowing of money or extension of credit or to mortgaging, pledging or otherwise placing a Top Merchant or Top VendorLien (other than Permitted Liens) on any asset of any Group Company;
(ii) any guaranty of any obligation for borrowed money or Contract containing any other than merchant agreements material performance guaranty or any Contract entered into in outside of the ordinary course of businessbusiness that contains an indemnification obligation which is material to the Group Companies, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018taken as a whole;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(iv) any Contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000 (excluding the Real Property Leases);
(v) any Contract or group of related Contracts with the same party for the purchase of products or services that provide for annual payments by a Group Company in excess of $100,000 during the trailing twelve (12) month period ending on the date of the Latest Balance Sheet or any remaining twelve (12) month period during the term of such Contract;
(vi) each any Contract with any Card Association or NACHA and/or each Contract with a member commitment relating to capital expenditures and involving future payments in excess of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA$100,000;
(vii) each material license any Contract or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms commitment relating to the public generally with license, maintenance, support and other fees disposition or acquisition of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers any interest in any business enterprise outside of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessconsistent with past practice;
(viii) each any Contract for or group of related Contracts with a customer that provides annual net revenues (based on the trailing twelve (A12) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion month period ending on the date of the assets or business Latest Balance Sheet) to the Group Companies in excess of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014$100,000;
(ix) each any Contract that, by its terms, prohibits the Company or (other than any of its Subsidiaries from Contract for Standard Software) under which (A) entering any Group Company acquired ownership of any Owned Intellectual Property, (B) any Group Company has granted to any Person a license or other rights to use any Owned Intellectual Property or Licensed Intellectual Property (other than non-exclusive licenses entered into in the context of ordinary course distribution agreements), (C) any Group Company has been granted by any Person a license or other rights to use any Licensed Intellectual Property or (D) any Group Company pays royalties to any Person for the right to use any Intellectual Property that is material to the business of the Group Companies, as currently conducted or as contemplated to be conducted;
(x) any Contract limiting in any respect the right of any Group Company to engage or participate, or compete with any Person, in any line of business, market or from freely providing services geographic area, or supplying products any Contract granting most favored nation pricing, exclusive sales, manufacturing, distribution, marketing or other exclusive rights, rights of first refusal, rights of first negotiation or options to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business)any collective bargaining Contract;
(xii) each any employment or contractor Contract that is an exchange traded, over (other than employment or contractor arrangements involving annual compensation by any of the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index Group Companies of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicesless than $100,000);
(xiii) each any Contract entered into that contains any redundancy, severance or termination pay or creates post-employment Liabilities (other than as required by applicable Law);
(xiv) any fidelity or surety bond or completion bond;
(xv) any partnership, joint marketing, joint venture Contract, strategic alliance, development Contract or any Contract which is or contains a power of attorney given by any Group Company;
(xvi) any sales representative, original equipment manufacturer, manufacturing, reseller or distribution Contract involving aggregate payments in connection with a material settlement under which any Acquired Company has material outstanding obligationsexcess of $100,000; or
(xivxvii) will be required any settlement agreement or covenant not to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantxxx.
(b) Except as The Company has not had made available to Parent a true and would not be reasonably likely to have, individually or in the aggregate, a correct copy of all Material Adverse Effect: (i) each Contracts. Each Material Contract is in full force valid and effect and binding on each Group Company that is a legalparty thereto, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contractas applicable, and, to the knowledge of the Company, there on each other Person that is a party to such Material Contract and each Material Contract is in full force and effect, subject to the Enforceability Exceptions. Without limiting the foregoing, the Company has made available to Parent (or its legal counsel) all material written correspondence and communication between the Company and the counterparty (and/or its successor entity) to the Contract referenced in Schedule 8.02(j) (or their respective legal counsel) with respect to the consent given by such counterparty (and/or its successor entity) under such Contract in connection with a financing transaction completed by one or more of the Group Companies.
(c) No Group Company has violated or breached, or committed any default under, any Material Contract and, to the knowledge of the Company, no other Person has violated or breached, or committed any material default under, any Material Contract and no event has occurred or condition exists no condition or event which, after notice, that with the lapse of time or the giving of notice (or both, would constitute any such violation, ) that will result in a violation or breach or default; (iii) neither the Company nor of any of its Subsidiaries has received written notice the provisions of default or termination under any Material Contract; and (iv) as . There are no pending, or to the knowledge of the date hereofCompany, neither the threatened disputes with respect to any Material Contract. Since January 1, 2008, no Group Company nor its Subsidiaries have waived has received any written notice that it is has materially violated or breached, or committed any material rights under default under, any Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Fluidigm Corp)
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list 7.14 lists all of the following Contracts to which the Company or any of its Subsidiaries is a party or otherwise by which the Company, any of its Subsidiaries or any of their respective assets are bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each (A) Any Contract with a Top Merchant pursuant to which payments in excess of $25,000 (1) were made by the Company or Top Vendorany of its Subsidiaries to any Person during the one (1) year period ended on the Latest Balance Sheet Date, or (2) are reasonably anticipated by the Company or any of its Subsidiaries, as of the date hereof, to be made to any Person during the one (1) year period ending on the first anniversary of the Latest Balance Sheet Date, and (B) any Contract pursuant to which payments in excess of $25,000 (A) were received by the Company or any of its Subsidiaries during the one (1) year period ended on the Latest Balance Sheet Date or (B) are reasonably anticipated by the Company or any of its Subsidiaries to be received during the one (1) year period ending on the first anniversary of the Latest Balance Sheet Date by or to the Company or any of its Subsidiaries;
(ii) other than merchant agreements entered into in any Contract relating to the ordinary course hosting of business, each Contract that involved the expenditure or receipt any web site operated by the Company and or any of its Subsidiaries of more than $500,000 in connection with the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018Business;
(iii) each any Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment third party containing any covenant that restricts the ability of inventions and/or noncompetition the Company or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)any of its Subsidiaries to compete or conduct any business in any geographic area or market;
(iv) each any Contract evidencing Company Indebtedness, including any loan which contains a “most favored customer” or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreementsimilar provision;
(v) each Real Property Leaseany Contract under which the Company or any of its Subsidiaries has created, incurred, assumed, guaranteed or secured Indebtedness currently outstanding or otherwise create or relate to any Lien on any of the Assets;
(vi) any Contract relating to outstanding letters of credit or performance bonds or creating any Liability as guarantor, surety, co-signer, endorser, co- maker or indemnitor, in each Contract with case in respect of the obligation of any Card Association third party to make payments or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHAperform services;
(vii) any Contract relating to the acquisition or disposition of any material business, operations or division (whether by merger, sale of stock, sale of assets or otherwise);
(viii) any collective bargaining agreement;
(ix) any Contract relating to the acquisition, transfer, development, sharing or license of any Intellectual Property that is material to the Business and other than non-exclusive licenses to use the Owned Intellectual Property contained in the Business’ standard customer contracts entered into in the Ordinary Course of Business, including any Contract relating to the ownership, marketing or sale of any products, except for (A) licenses implied by the sale of goods and (B) shrink-wrap and click-wrap software licenses, end-user licenses and licenses to software generally commercially available, in each material license case with a replacement cost of less than $15,000;
(x) any Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or limited liability company or other similar agreement or arrangement;
(xi) any Contract for capital expenditures or the acquisition or construction of fixed assets which require aggregate future payments in excess of $25,000 over the remaining life of such agreement;
(xii) any Contract relating to the settlement of any material Proceeding or the waiver or release of any material rights or material claims in respect of any Proceeding;
(xiii) any Contract requiring the Company or any of its Subsidiaries to indemnify any person, except for standard indemnification provisions in Contracts entered into by the Company in the Ordinary Course of Business;
(xiv) any Contract granting any exclusive rights to any party;
(xv) any Contract with any Governmental Authority which is material to the Business;
(xvi) any Contract with any director, officer or Affiliate of any Seller Party;
(xvii) any Contract relating to the employment of, or the performance of services by, a Company Employee or consultant (excluding any offer letters relating to at-will employment), or pursuant to which the Company or any of its Subsidiaries grants is or receives rights in may become obligated to make any severance, termination or similar payment or provide post-employment benefits to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms current or former employee or director; or pursuant to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of which the Company or any of its Subsidiaries in the ordinary course of business and is or may become obligated to make any bonus or similar payment (Cother than payments constituting base salary) referral agreements and reseller agreements in the ordinary course of businessto any current or former employee or director;
(viiixviii) each any Contract for the (A) disposition (whether by mergerrelating to the acquisition, consolidationissuance, voting, registration, sale of equity or assets or otherwise) transfer of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a wholesecurities, (B) acquisition providing any person or entity with any preemptive right, right of any significant portion participation, right of the assets or business maintenance or any Equity Interests (whether by merger, consolidation, purchase of equity similar right with respect to any securities or assets or otherwise) of any other Person (other than in the ordinary course of business)assets, or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits providing the Company or any of its Subsidiaries from (A) entering into with any line right of businessfirst refusal with respect to, or from freely providing services right to repurchase or supplying products to redeem, any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Personsecurities;
(xxix) each any Contract granting powers of attorney or similar authorizations by the Company or any of its Subsidiaries to third parties;
(xx) any Contract under which the amount payable by or to the Company or any Subsidiaries is dependent on the revenues, income or similar measure of the Business, or in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions is obligated to pay royalties, commissions or exclusive marketing or distribution rights relating similar payments to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partyPerson based on the Business;
(xixxi) each any Contract concerning the establishment with any Customer or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);Key Supplier; and
(xiixxii) each any Contract not otherwise described in Schedule 7.14 entered into outside the Ordinary Course of Business that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a otherwise material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to or the knowledge of Business.
(b) Each Material Contract was entered into at arms’ length and in the Company, any other party to any Material Contractordinary course, is in material violation, material breach or material default under, any Material Contract, full force and effect and, is valid and binding upon the Company or its Subsidiary, as applicable, and to Sellers’ Knowledge, enforceable against each of the other parties thereto (subject to the knowledge General Enforceability Exceptions). True, correct and complete copies of all Material Contracts (including all, schedules, exhibits, amendments, supplements, renewals, extensions and guarantees thereto) have previously been made available to Buyer.
(c) None of the Company, there exists no condition Company or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice is in default under or in material breach of nor in receipt of any claim of default or termination material breach under any Material Contract; and (iv) as no event has occurred which with the passage of time or the date hereof, neither giving of notice or both would result in a default or material breach by the Company nor or any of its Subsidiaries have waived any material rights under any such Material Contract. To Sellers’ Knowledge, no other party to any Material Contract is in default under or in breach of such Material Contract and no event has occurred which with the passage of time or giving of notice or both would result in a material default or breach by any such party under any such Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) of the 4.8.1 Company Material Contracts The Disclosure Schedule sets forth a -------------------------- complete and accurate list of (and, other than documents filed as exhibits to the SEC Filings, Purchaser has been provided complete and correct and complete list copies of) any of the following Contracts contracts to which the Company or any of its Subsidiaries is a party or otherwise by which the Company is bound (the Contracts required to be set forth in Section 3.14(aeach, a "Company Material Contract"):
(a) all written management, compensation, employment or other contracts entered into with any executive officer, director or key employee of the Company;
(b) all contracts under which the Company Disclosure Schedule collectivelyhas any outstanding indebtedness, obligation or liability for borrowed money or the “Material Contracts”):deferred purchase price of property or has the right or obligation to incur any such indebtedness, obligation or liability, in each case in an amount greater than $100,000 and in the aggregate more than $1,000,000;
(c) all bonds or agreements of guarantee or indemnification under which the Company acts as surety, guarantor or indemnitor with respect to any obligation (fixed or contingent) in an individual amount or potential amount greater than $100,000 or in the aggregate more than $1,000,000;
(d) all noncompete or similar agreements;
(e) all partnership and joint venture agreements;
(f) all agreements relating to material acquisitions or dispositions of any business or product line;
(g) all insurance policies currently in effect and covering the Company, its operations or personnel;
(h) all bonus, profit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other employee benefit agreements, trusts, plans, funds or other arrangements for the benefit or welfare of any director, officer or employee of the Company;
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant all agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or has agreed to pay any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessrebates;
(viiij) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of all private label agreements with any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014Company's customers;
(ixk) each Contract that, by its terms, prohibits the Company or all supply agreements with any of its Subsidiaries from (A) entering into the Company's suppliers including co-packers, together with any line of business, modification thereof or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;subsequent agreement related thereto; and
(xl) each Contract in all agreements, together with any modification thereof or subsequent agreement related thereto, pursuant to which the Company has licensed from, or to, a third party any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any serviceproduct formulations, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnershipinventions, joint venturetrade secrets, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange tradedknow-how, over the counter trademarks, trademark registrations, trade names, copyrights or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to haveintellectual property that are material, individually or in the aggregate, a Material Adverse Effect: (i) each to the Company. The term Company Material Contract is does not include any purchase orders having a duration of one year or less for products, services or inventory issued or received in full force and effect and is a legal, valid, binding and enforceable obligation the ordinary course of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractbusiness.
Appears in 1 contract
Samples: Merger Agreement (Kraft Foods Inc)
Contracts and Commitments. (a) Section 3.14(a) To the best knowledge of SCHLUMBERGER, except as provided in Schedule 5.19 (a), none of the Company Disclosure Schedule sets forth a correct and complete list Acquired Companies or the Selling Subsidiaries has any power of the following Contracts to which the Company attorney outstanding or any of its Subsidiaries is a party obligations or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition liabilities (whether by mergerabsolute, consolidationaccrued, sale of equity or assets contingent or otherwise) as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of obligations of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of third party. Neither are there any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing forward foreign exchange contracts or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an foreign exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantinstruments.
(b) Except as has not had and would not be reasonably likely Schedule 5.19 (b) lists all contracts which are material to havethe operation of the RPS Business (the "Material Contracts"). For purposes of this Agreement, individually or in the aggregate, a Material Adverse Effect: Contracts shall mean (i) supply contracts: those for more than one year not cancelable without penalty, and those for the five highest dollar volumes of purchases for each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company Acquired Companies or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions)Selling Subsidiaries; (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event contracts for products and services with a sole source supplier which, after noticeduring the 1997 calendar year, lapse of time or both, would constitute any such violation, breach or defaultaccounted for more than US dollars 1,000,000 (one million dollars); (iii) neither patent licensing agreements the Company object of which is specific to an RPS Business application, whether or not payments are required; (iv) sales agreements which, in 1997, accounted for more than US dollars 1,000,000 (one million dollars) worth of sales.
(c) Neither the Acquired Companies nor any of its the Selling Subsidiaries has received written notice of is in material default or termination under any of the Material Contract; Contracts. To the best knowledge of SCHLUMBERGER and (iv) of the Selling Subsidiaries, there has not been any material default under any of the Material Contracts by any other party thereto nor to the best of their knowledge have they been informed, as of the date of this Agreement by any such other party of its intent to terminate a Material Contract.
(d) None of SCHLUMBERGER, the Acquired Companies or the Selling Subsidiaries has received any written notice or has any knowledge or reason to believe that any current material supplier to any Acquired Company or Acquired RPS Activity will not continue to supply any Acquired Company or Acquired RPS Activity on substantially the same basis as it currently supplies any such Acquired Company or Acquired RPS Activity, except for price increases in accordance with any such supplier's ordinary course of business.
(e) SCHLUMBERGER shall, and shall cause each Selling Subsidiary and the Acquired Companies to, not do any act or omit to do any act, or permit any act or omission which would, upon such act or omission or with the passage of time, cause a breach or default under any of the Material Contracts, or materially adversely affect BUYER's use of the properties or the assets of the RPS Business. Beginning on the date hereof, SCHLUMBERGER shall, and shall cause each Selling Subsidiary and the Acquired Companies to, use their respective best efforts to obtain any consents and waivers necessary to maintain such Contracts.
(f) The assignment of Material Contracts entered into by the Selling Subsidiaries with respect to the Acquired RPS Activities may require the prior written consent of the other party. However, to SCHLUMBERGER's knowledge, and except as listed in Schedule 5.19 (f), all Material Contracts are assignable to BUYER without undue difficulties, and SCHLUMBERGER shall use its best efforts to facilitate such assignment.
(g) The RPS Business is not restricted by agreement from carrying on its business anywhere in the world.
(h) The RPS Business does not have any material outstanding loan to any person.
(i) Except for employment agreements and those agreements that are listed in Schedule 5.19(i), neither the Company Selling Subsidiaries nor its Subsidiaries the Acquired Companies have waived any material rights under any Material Contractentered into agreements with their officers and directors that relate to the RPS Business and are being transferred to BUYER either through the Acquired Companies or the Acquired RPS Activities.
Appears in 1 contract
Samples: Master Agreement for Purchase and Sale of Shares, Assets and Liabilities (Tokheim Corp)
Contracts and Commitments. (a) Section 3.14(a) 3.15 of the Company Disclosure Schedule sets forth a correct list of all of the Contracts to which any of the Companies or Subsidiaries are a party or by which any of the Companies, Subsidiaries or their respective assets are bound and complete list which fall into one of the following Contracts to which the Company or any of its Subsidiaries is categories (each such contract, a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material ContractsContract”):
(ia) each Contract any Contracts containing any covenant limiting the ability of any of the Companies or Subsidiaries to engage in any line of business or to compete with a Top Merchant or Top Vendorany Person;
(iib) other than merchant any agreements entered into in under which any of the ordinary course of businessCompanies or Subsidiaries has borrowed or loaned money, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31any note, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guarantybond, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment installment obligation or lease purchase agreementother evidence of indebtedness for borrowed or loaned money or any guarantee of such indebtedness;
(vc) each Real Property Leasepowers of attorney from any of the Companies or Subsidiaries;
(vid) each any Contract relating to expenditures with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or respect to any of its Subsidiaries’ participation the Companies or Subsidiaries and involving committed future payments which exceed $25,000 in such Card Association any 12 month period, excepting photographer or NACHAcontributor agreements and contracts of employment;
(viie) each material license or other material any Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms relating to the public generally with license, maintenance, support and other fees acquisition or disposition of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), business consistent with past practice) or (C) acquisition of any Equity Interests Securities of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014business enterprise;
(ixf) each any Contract that, by its terms, prohibits with respect to Company Intellectual Property and which is listed on Section 3.11(a) of the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other PersonDisclosure Schedule;
(xg) each Contract in all agency, distribution and other such Contracts pursuant to which the Company or any of its the Companies or Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating supply Images to any service, product or territory or has agreed to purchase third parties or otherwise obtain any material product authorize third parties to supply or service exclusively from a single party or sell any material product or service exclusively distribute Images, as attached to a single partySection 3.15(g) of the Disclosure Schedule;
(xih) each Contract concerning all Contracts that provide for the establishment payment of benefits or operation the acceleration of benefits to personnel as a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in result of the ordinary course consummation of business)the transactions contemplated by this Agreement;
(xiii) each Contract that is an exchange tradedall agreements between Seller (including its directors, over officers, employees and Affiliates (excepting the counter or Companies and Subsidiaries)), on the one hand, and any of the Companies and/or Subsidiaries, on the other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indiceshand;
(xiiij) each Contract entered into in connection all photographer agreements with a material settlement under which any Acquired Company has material outstanding obligations; or
regard to royalty payments and financial reporting (xiv) these agreements will not be required to be filed with listed on Section 3.15 of the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by Disclosure Schedule, but are included within the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1definition of Material Contract), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: agreements for (i) each Material Contract is the twenty photographers contracted to Amana EU whose Images generated the greatest amount of revenue for the Companies and Subsidiaries in full force and effect and is a legal2004, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Companytwenty photographers contracted to Amana US whose Images generated the greatest amount of revenue for the Companies and Subsidiaries in 2004, and (iii) the ten photographers contracted to Iconica whose Images generated the greatest amount of revenue for Iconica in 2004;
(k) any other agreements entered into or committed to by any Company or Subsidiary which contain provisions providing for: photographer advances; minimum royalty obligations; special ongoing pricing arrangements or commitments with customers or licensees; agreements that Images appear in a particular order in website search order results; or commitments to a minimum number of its search slots for an Image provider or photographer. None of the Companies, Subsidiaries noror, to the knowledge of the CompanySeller’s Knowledge, any other party to any such Material Contract, Contract is in material violationbreach thereof or default thereunder and, material to Seller’s Knowledge, there does not exist under any such Material Contract any event which, with the giving of notice or the lapse of time, would constitute such a breach or material default underdefault. No notice has been received that there will be a loss of, alteration or contract cancellation of, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a3.13(a) of the Company Bakkt Disclosure Schedule Letter sets forth a correct and complete list of the following Contracts to which the Company Bakkt Opco or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a3.13(a) of the Company Bakkt Disclosure Schedule Letter collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company Bakkt Opco and its Subsidiaries of more than $500,000 150,000 in the aggregate during the twelve-month twelve (12)-month period ending on December 31, 2017 2019 or is reasonably expected to would involve the expenditure or receipt by the Company Bakkt Opco and its Subsidiaries of more than $500,000 150,000 in the aggregate in the twelve-month twelve (12)-month period ending December 31, 20182020;
(iiiii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Bakkt Benefit Plans and Company Bakkt Benefit Arrangements);
(iviii) each Contract evidencing Company Indebtednessindebtedness in excess of $150,000, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(iv) each Contract that prohibits the payment of dividends or distributions in respect of the Equity Interests of Bakkt Opco or its Subsidiaries or the pledging of the Equity Interests of Bakkt Opco or its Subsidiaries;
(v) all management and consultant contracts (excluding Contracts for employment or that do not exceed annual fees of $200,000 per year), including any Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of Bakkt Opco or its Subsidiaries or income or revenues related to any product or service of Bakkt Opco or its Subsidiaries;
(vi) each Real Property Lease;
(vivii) each Contract with any Card Association or NACHA and/or license, in each Contract with a member case that is material to the business of a Card Association enabling the Company’s Bakkt Opco or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract , pursuant to which the Company Bakkt Opco or any of its Subsidiaries grants or receives rights in in, or to use use, any material Intellectual Property, but excluding except Contracts for (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally off-the-shelf Software with license, maintenance, support and other annual fees that do not exceed annual fees of less than $25,000 150,000 per yearyear which are readily commercially available, and (B) non-exclusive licenses Intellectual Property granted to Merchants or other customers of the Company by Bakkt Opco or any of its Subsidiaries to customers in the ordinary course of business and (C) referral agreements and reseller agreements in or service providers solely for the ordinary course purpose of businessperforming services on Bakkt Opco’s or any of its Subsidiaries’ behalf;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company Bakkt Opco and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of at least one percent (1%) of Equity Interests of Bakkt Opco or any Acquired Company of its Subsidiaries (other than by the Company or Bakkt Opco and its Subsidiaries, Subsidiaries and excluding Company Profits Units granted in the ordinary courseany exercise of Bakkt Opco Warrants and Bakkt Opco Incentive Units), in each case, entered into since January 1, 2014the Formation Date;
(ix) each Contract thatthat limits or purports to limit, by its termsdirectly or indirectly, prohibits the Company freedom of Bakkt Opco or any of its Subsidiaries from (A) entering into to compete in any line of businessbusiness or with any Person or engage in any line of business within any geographic area, or restricts, directly or indirectly, Bakkt Opco’s or its Subsidiaries’ ability to solicit or hire any Person or solicit business from freely providing services or supplying products to any customer or potential customer, or in any territory Person or (B) from purchasing or acquiring an interest in any other Person;
(x) each Contract in that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Company Bakkt Opco or any of its Subsidiaries has granted “most favored nation” pricing provisions would be required to, directly or exclusive marketing or distribution rights relating to any serviceindirectly, product or territory or has agreed to purchase or otherwise obtain sell, as applicable, any material product securities, capital stock or service exclusively from a single party other interests, assets or sell business of any material product or service exclusively to a single partyother Person;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or revenue sharing, limited liability company, trust, association, any noncorporate entity or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business)enterprise;
(xii) any collective bargaining (or similar) agreement or Contract between Bakkt Opco or any of its Subsidiaries, on one hand, and any labor union or other body representing employees of Bakkt Opco or any of its Subsidiaries, on the other hand;
(xiii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiiixiv) each Contract entered into in connection with a material settlement under which Bakkt Opco or any Acquired Company of its Subsidiaries has material outstanding obligations;
(xv) each supervisory Contract with a Governmental Authority and terms of conditional approvals from any Governmental Authority for any License or Permit other than Contracts for which the disclosure is prohibited by applicable Law; or
(xivxvi) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company Bakkt Opco as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company Bakkt Opco was the registrant.
(b) Except as has not had and would not be reasonably likely materially adverse to haveBakkt Opco and its Subsidiaries, individually or in the aggregatetaken as a whole, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company Bakkt Opco or its applicable Subsidiary and, to the knowledge of the CompanyBakkt Opco, each other party thereto (subject in each case to the Enforcement Exceptions); and (ii) neither the CompanyBakkt Opco, any of its Subsidiaries nor, to the knowledge of the CompanyBakkt Opco, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the CompanyBakkt Opco, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company Bakkt Opco nor any of its Subsidiaries has received written written, or to the knowledge of Bakkt Opco, oral notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company Bakkt Opco nor its Subsidiaries have waived any material rights under any Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(aSchedule 3.13a) of in the Company Disclosure Schedule sets forth a correct and complete list as of the date of this Agreement of each of the following Contracts types of contracts to which the Company or any of its Subsidiaries is a party (other than purchase orders, statements of work and similar agreements and other than Employee Benefit Plans or otherwise bound (International Plans listed on Schedule 3.17 in the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”Schedule):
(i) each Contract any employment agreement, employment contract or consulting agreement with any director, officer, employee or individual independent contractor of the Company or any of its Subsidiaries pursuant to which the Company and its Subsidiaries have future liability in excess of $250,000 per annum to such director, officer, employee or independent contractor and is not terminable by the Company and its Subsidiaries upon notice of sixty (60) calendar days or less for a Top Merchant or Top Vendorcost of less than $250,000;
(ii) any covenant not to compete, or exclusive right or license, granted by the Company or any of its Subsidiaries in favor of a third party;
(iii) any agreement or group of related agreements with respect to a single transaction or series of related transactions 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 tangible personal property owned or leased by the Company or such Subsidiary, in any case which has future liability to the Company and its Subsidiaries in excess of $250,000 per annum and is not terminable by the Company and its Subsidiaries upon notice of sixty (60) calendar days or less for a cost of less than $250,000;
(iv) any agreement or contract under which the Company or any of its Subsidiaries has borrowed any money or issued any note, indenture or other evidence of Indebtedness or guaranteed Indebtedness or liabilities of others (other than merchant agreements entered into solely among the Company and its Subsidiaries, endorsements for the purpose of collection, purchases of equipment or materials made under conditional sales contracts or surety bonds, performance bonds or similar instruments, in each case in the ordinary course of businessbusiness and not exceeding $500,000 in the aggregate for all such agreements, each Contract that involved endorsements, purchases and instruments);
(v) any partnership, strategic alliance or joint venture agreement;
(vi) any agreement (other than any standard purchase order or pricing agreement) for the expenditure or receipt sale, distribution, servicing by the Company and its Subsidiaries of more than goods or services that provides for payments to the Company or any of its Subsidiaries in excess of $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or 300,000 per annum and is reasonably expected to involve the expenditure or receipt not terminable by the Company and its Subsidiaries upon notice of more sixty (60) calendar days or less for a cost of less than $500,000 in the aggregate in the twelve-month period ending December 31, 2018300,000;
(iiivii) each Contract any agreement with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition a Key Customer or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)Key Supplier;
(ivviii) each Contract evidencing Company Indebtedness, including any loan agreement granting any third party the exclusive right to purchase or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling distribute the Company’s or any of its Subsidiaries’ participation in such Card Association products or NACHAservices;
(viiix) each material license or other material Contract any agreement pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) has provided a “shrink wrap,most favored nation” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms provision to the public generally with license, maintenance, support other party;
(x) any agreement that obligates the Company or any of its Subsidiaries to make any earn-out or similar payments based on future performance of an acquired business or assets;
(xi) any agreement for the purchase by the Company and other fees its Subsidiaries of goods or services that provides for annual payments by the Company and its Subsidiaries in excess of $300,000 and is not terminable by the Company and its Subsidiaries upon notice of sixty (60) calendar days or less for a cost of less than $25,000 per year, 300,000;
(Bxii) non-exclusive licenses granted any agreement that contains any revenue sharing or profit sharing provisions; or
(xiii) any settlement agreement entered into within the past three (3) years and providing for payments by or to Merchants or other customers of the Company or any of its Subsidiaries in excess of $300,000 or otherwise imposing material non-monetary restrictions on the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) The Company has made available for inspection by Parent a true and correct copy of each contract, lease, license, instrument or other agreement listed or required to be listed on Schedule 3.13a) in the Disclosure Schedule and the Scheduled Company IP Agreements (collectively, the “Material Contracts”). Except as has not had and would not be reasonably likely to have, individually or disclosed on Schedule 3.13b) in the aggregateDisclosure Schedule, a the Company or the applicable Subsidiary party thereto, and, to the Knowledge of the Company, each applicable counterparty, has performed all material obligations required to be performed by it to date under the Material Adverse Effect: Contracts and is not (iwith or without the lapse of time or the giving of notice, or both) each in material breach or default thereunder. Each Material Contract is valid and binding on the Company or the applicable Subsidiary party thereto, is in full force and effect and is a legal, valid, binding and enforceable obligation of against the Company or its the applicable Subsidiary party thereto and, to the knowledge Knowledge of the Company, each other party thereto (subject the counterparties thereto, in each case to except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general equitable principles.
(c) The Company has made available for inspection by Parent a true and correct copy of the Enforcement Exceptions); (ii) neither Equity Agreements and the Company, any of its Subsidiaries norCompany or the applicable Subsidiary party thereto and, to the knowledge Knowledge of the Company, any other party thereto, have performed all material obligations required to any Material Contract, be performed by such Person to date under the Equity Agreements and is not in material violation, material breach or material default underthereunder. The Equity Agreements shall terminate upon the Effective Time, with no further liability on the Company or any Material Contract, and, to the knowledge of the Company’s Subsidiaries, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as except for those provisions of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material ContractEquity Agreements that survive such termination in accordance with their terms.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) of Except as set forth in the Company ISG Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of its Subsidiaries Schedule, ISG is not a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):subject to:
(i) each Contract Any employment contract or arrangement, written or oral, providing for future compensation with any officer, consultant, director or employee which is not terminable by it on thirty (30) days' notice or less without penalty or obligation to make payments related to such termination, other than (A) (in the case of employees other than executive officers) such severance agreements as are not different from standard arrangements offered to employees generally in the ordinary course of business consistent with ISG's past practices, a Top Merchant description of which is set forth in the ISG Disclosure Schedule and (B) such agreements as may be imposed or Top Vendorimplied by law;
(ii) Any plans, contracts or arrangements, written or oral, which collectively require aggregate payments by ISG in excess of $10,000 for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or the like;
(iii) Any joint marketing, joint development or joint venture contract or arrangement or any other than merchant agreements entered into agreement which has involved or is expected to involve a sharing of profits with other persons;
(iv) Any existing OEM agreement, distribution agreement, volume purchase agreement, or other similar agreement in which the annual amount involved in 1999 exceeded, or is expected to exceed in 2000 or any subsequent year, $10,000 or pursuant to which ISG has granted or received most favored customer provisions or exclusive marketing rights related to any product, group of products or territory;
(v) Any lease for real or personal property pursuant to which the amount of payments which ISG is required to make on an annual basis exceeds $10,000;
(vi) Any agreement, contract, mortgage, indenture, lease, instrument, license, franchise, permit, concession, arrangement, commitment or authorization which may be, by its terms, terminated or breached by reason of the execution of this Agreement, the Merger Agreement or any ISG Ancillary Agreement, the closing of the Merger, or the consummation of the transactions contemplated hereby or thereby;
(vii) Except for trade indebtedness incurred in the ordinary course of business, each Contract that involved the expenditure any instrument evidencing or receipt by the Company and its Subsidiaries related in any way to indebtedness in excess of more than $500,000 10,000 incurred in the aggregate during the twelve-month period ending on December 31acquisition of companies or other entities or indebtedness in excess of $10,000 for borrowed money by way of direct loan, 2017 sale of debt securities, purchase money obligation, conditional sale, guarantee, indemnification or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018otherwise;
(iiiviii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit Any license agreement, security agreementeither as licensor or licensee, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive except licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into Any contract containing covenants purporting to limit ISG's freedom to compete in any line of business, or from freely providing services or supplying products to any customer or potential customer, business or in any territory geographic area or (B) purchasing or acquiring an interest in with any other Personthird party;
(x) each Contract in which the Company Any agreement, contract or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights commitment relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;capital expenditures and involving future obligations in excess of $10,000; or
(xi) each Contract concerning the establishment Any other agreement, contract or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that commitment which is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantISG's Business.
(b) Except as has not had Each agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and would not be reasonably likely to have, individually or commitment is listed in the aggregateISG Disclosure Schedule, a Material Adverse Effect: (i) each Material Contract and is valid and binding on ISG, and is in full force and effect effect, and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, ISG nor any other party to thereto, has breached any Material Contractmaterial provision of, or is in material violation, material breach or material default underunder the terms of, any Material Contractsuch agreement, andcontract, to the knowledge mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license or commitment.
(c) None of the Company20 largest customers of ISG during the twelve month period ended February 29, there exists no condition 2000 (determined on the basis of both revenues and bookings during such period) has reduced or event whichterminated, after noticeor has notified ISG in writing that it intends to reduce or terminate, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any amount of its Subsidiaries business with ISG.
(d) There is no agreement, judgment, injunction, order or decree binding upon ISG which has received written notice or could reasonably be expected to have the effect of default prohibiting or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived impairing any material rights under current business practice of ISG, any Material Contractacquisition of material property by ISG or the conduct of business by ISG as currently conducted or as proposed to be conducted by ISG.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) Except as set forth on Schedule 3.16 or pursuant to the Transactions, immediately prior to the Closing neither SHP nor, with respect to the Business, any of the Company Disclosure Schedule sets forth Sunstone Parties will be a correct party to, and complete list of the following Contracts to which the Company or neither any of its Subsidiaries is a party or otherwise such Persons nor their respective assets will be bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):by any:
(i) each Contract management contracts and franchise agreement in effect with a Top Merchant respect to the hotels owned, leased or Top Vendoroperated in the Business;
(ii) other than merchant agreements entered into in the ordinary course documents evidencing or creating Indebtedness for borrowed money, or giving rise to a guarantee of businesssuch Indebtedness, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018SHP with a remaining principal balance;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basispartnership agreements, (B) customary confidentialitylimited liability company agreements, assignment of inventions and/or noncompetition joint venture agreements, joint marketing contracts or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)alliance contracts;
(iv) each Contract evidencing Company Indebtedness, including leases relating to any loan material real or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreementpersonal property leased by SHP;
(v) employment agreements with the SHP Employees, any change in control, retention or severance agreement or arrangement with any SHP Employee, and all agreements pursuant to which consulting services are rendered to SHP, in each Real Property Leasecase that are likely to involve payments in excess of $50,000 per year;
(vi) each Contract with Contracts granting any Card Association party a first-refusal, first-offer or NACHA and/or each Contract with a member of a Card Association enabling the Company’s other right to purchase or acquire any of its Subsidiaries’ participation equity interest in such Card Association or NACHASHP;
(vii) each material license or other material Contract pursuant Contracts between SHP and any Affiliate of SHP that would reasonably be expected to which result in the Company or any aggregate, in payments of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less more than $25,000 50,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the Contracts pursuant to which SHP has an obligation (contingent or otherwise) to pay any amounts in respect of indemnification obligations, purchase price adjustment or otherwise in connection with (A) any acquisition or disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a wholeassets, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity consolidation or assets or otherwise) of any other Person (other than in the ordinary course of business)business combination, or (C) acquisition series or group of Equity Interests related transactions or events of any Acquired Company a type specified in (other than by the Company A) or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course(B), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or other Contracts with respect to any of its Subsidiaries from (A) entering into any line of businessmerger, or from freely providing services sale or supplying products to any customer acquisition of material assets or potential customerequity interests, or in any territory or (B) purchasing or acquiring an interest in any other Personthat has not yet closed;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partycollective bargaining agreements;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contract.
Appears in 1 contract
Samples: Stock Purchase Agreement (Interstate Hotels & Resorts Inc)
Contracts and Commitments. (a) Section 3.14(a) Schedule 3.10 of the Company Disclosure Schedule Schedules sets forth a correct and complete list each of the following Contracts to which the Company or any of its Subsidiaries Seller is a party or otherwise bound or to which any of its properties or assets are subject (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each any Contract with a Top Merchant or Top Vendorpursuant to which the Seller received more than $10,000 over the past twelve (12) months;
(ii) other than merchant agreements entered into in any Contract which obligates, or is reasonably likely to obligate, the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of Seller to pay more than $500,000 10,000 over any future twelve (12) month period in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018next five (5) years;
(iii) each employment Contract that is not terminable at will by the Seller both without any penalty and without any obligation of the Seller to pay severance or other amounts (other than accrued base salary, accrued bonuses, accrued commissions, accrued vacation pay, accrued floating holidays and legally mandated benefits);
(A) each employee collective bargaining agreement or other Contract with any Related Party (other than (A) offer letters for employment on an at-will basislabor union or similar organization, (B) customary confidentialityeach Plan or Contract that provides for the payment of bonus, assignment severance, termination or similar type of inventions and/or noncompetition compensation or other similar arrangements benefits related to a corporate transaction involving a change in control of the Seller or upon the termination or resignation of any participant, and (C) Company Benefit Plans and Company Benefit Arrangementseach Plan or Contract that provides for medical or life insurance benefits for former participants or for current participants upon their retirement from, or termination of employment with, Seller (other than COBRA Continuation Coverage);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property LeaseContract pursuant to which the Seller has agreed not to compete with any Person or to engage in any activity or business, or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging;
(vi) each Contract with which provides for “exclusivity” or any Card Association similar requirement in favor of any Person other than the Seller, or NACHA and/or each Contract with a member of a Card Association enabling under which Seller is restricted in any respect in the Company’s distribution, licensing, marketing, purchasing, development or any manufacturing of its Subsidiaries’ participation in such Card Association respective products or NACHAservices;
(vii) each material license Contract with any Insider or former Insider (other material Contract pursuant than employment Contracts referred to which the Company in clause (iv) above or any of its Subsidiaries grants or receives rights Contracts referred to in or to use any material Intellectual Property, but excluding clause (Av) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessabove);
(viii) each Contract for under which the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of Seller has agreed to indemnify any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014Person;
(ix) each Contract thatthat requires consent, by its terms, prohibits the Company approval or any of its Subsidiaries from (A) entering into any line of businesswaiver of, or from freely providing services notice to, a third Person in the event of or supplying products with respect to the transactions contemplated by this Agreement, including in order to avoid termination of or loss of a benefit under any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Personsuch Contract;
(x) each Contract providing for future performance by the Seller in consideration of amounts previously paid to the Seller, or which the Company has resulted or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partywill result in deferred revenue under GAAP;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business)Purchased Contract;
(xii) each Contract containing (whether in the Contract itself or by operation of Law) any provisions (A) dealing with a “change of control” or similar event with respect to the Seller, (B) prohibiting or imposing any restrictions on the assignment of all or any portion thereof by the Seller to any other Person (without regard to any exception permitting assignments to Affiliates) or (C) having the effect of providing that is an exchange tradedthe consummation of any of the transactions contemplated by this Agreement or compliance by the Seller with the provisions of this Agreement (alone or in combination with any other event) or the execution, over delivery or effectiveness of this Agreement (alone or in combination with any other event) will result in a breach, violation or infringement of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to the counter creation of any Lien or any right of termination, amendment, loss of benefits or other swapLoss, cap, floor, collar, futures contract, forward contract, option cancellation or other derivative financial instrument or acceleration) under such Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; orproviding for payments of royalties, franchise fees, commissions, other license fees or other transactional fees to third Persons;
(xiv) will be required each Company Intellectual Property Contract;
(xv) each Contract granting the other Person to such Contract or a third party “most favored nation” or similar status;
(xvi) each Contract that guarantees or warrants that any of the products or services of the Seller is fit for any particular purpose or that guarantees a result or commits to performance levels;
(xvii) each Contract providing for any license or franchise granted by the Seller pursuant to which the Seller has agreed to provide any third party with access to source code or to provide for source code to be filed put in escrow or to refrain from granting license or franchise rights to any other Person;
(xviii) each Contract containing any “non-solicitation,” “no hire,” or similar provision;
(xix) each Contract providing for liquidated damages (but not including other kinds of provisions that provide for limiting the maximum amounts payable or for refunds of amounts in the event of a breach or a termination of a Contract);
(xx) each Contract entered into by the Seller in the last five years in connection with the Registration Statement under applicable SEC requirements settlement or would otherwise be required to be filed other resolution of any Proceeding;
(xxi) each Contract entered into by the Company as an exhibit for Seller a Form S-1 pursuant substantial purpose of which is providing confidential treatment by the Seller of third-party information which, to Items 601(b)(1)the Knowledge of the Seller, contains restrictions on the Seller’s use of such third-party information; and
(2), (4), (9xxii) or (10) each Contract with any independent contractor of Regulation S-K under the Securities Act as if the Company was the registrantSeller.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Each Material Contract is a valid and binding obligation of the Seller and is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, effect. Seller has performed all material obligations required to the knowledge of the Company, be performed by it under each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, . There exists no material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition (or event which, after notice, that with or without notice or the lapse of time time, or both, would constitute any such violation, a material breach or material default; (iii) neither on the Company nor part of Seller or its Affiliates or, to the Knowledge of the Seller, on the part of any of its Subsidiaries has received written notice of default or termination other party thereto under any Material Contract; and . No event is occurring or has occurred (iv) as in the case of the date hereof, neither the Company nor its Subsidiaries have waived any material rights event with respect to a third party under any Material Contract, to the Knowledge of the Seller) that with or without notice or lapse of time would permit termination, modification, or acceleration, under any Material Contract. None of the Seller or its Affiliates or any other party thereto has repudiated any provision of any Material Contract. To the Knowledge of the Seller, there are no circumstances that are reasonably likely to have an adverse effect on the ability of the Seller to perform its obligations under any Material Contract. With respect to all Material Contracts that obligate the Seller to meet certain volume, service level or similar requirements, Seller, as applicable, has met all such requirements at the maximum or highest levels required by such Material Contracts.
Appears in 1 contract
Contracts and Commitments. (a) The Disclosure Schedule, under the caption referencing this Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list of 4.14, lists the following Contracts contracts, commitments and/or binding understandings, whether oral or written, to which the Company or any of its Subsidiaries Seller is a party or otherwise bound (and which are currently in effect, and which relate to the Contracts required to be set forth in Section 3.14(a) operation of the Company Disclosure Schedule collectively, Business or the “Material Contracts”Assets (each a "Disclosed Contract"):
(i) each Contract all employment or consulting agreements, employee benefit plans and union or collective bargaining agreements and all noncompetition and/or confidentiality agreements Seller has entered into with a Top Merchant or Top Vendorits current and former employees;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure all sales agency or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018advertising agency contracts;
(iii) each Contract with any Related Party (all material contracts terminable by the other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment party thereto upon a change of inventions and/or noncompetition control of Seller or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)upon the failure of Seller to satisfy financial or performance criteria specified in such contract;
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreementall leases of personal property (to the extent not otherwise disclosed in the Disclosure Schedule under the caption referencing Section 4.10);
(v) each Real Property Leaseall contracts relating to the performance and payment of any surety bond or letter of credit required to be maintained by Seller;
(vi) each Contract with any Card Association all confidentiality or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHAnondisclosure agreements not disclosed pursuant to Section 4.14(a)(i);
(vii) each material license all stock purchase or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessstock option plans;
(viii) each Contract for all agreements or indentures relating to the (A) disposition (whether by mergerborrowing of money or to mortgaging, consolidation, sale of equity pledging or assets or otherwise) of otherwise placing a lien on any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014Assets;
(ix) each Contract that, by its terms, prohibits the Company any guaranty of any obligation for borrowed money or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Personotherwise;
(x) each Contract in all contracts or group of related contracts with the same party for the purchase of products or services under which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed obligation to purchase such products or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partyservices after the Closing Date is in excess of $100,000;
(xi) each Contract concerning all contracts or group of related contracts with the establishment same party for the sale of products or operation services under which the obligation to provide such products or services after the Closing Date has a sales price in excess of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business)$100,000;
(xii) each Contract that is an exchange traded, over agreements for the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index sale of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicescapital asset;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; orall franchise agreements;
(xiv) will be required to be filed contract or commitment for capital expenditures in excess of $100,000;
(xv) all contracts which by their express terms prohibit Seller and/or the Shareholders from freely engaging in business anywhere in the world;
(xvi) all development, consulting, license (other than licenses for off- the-shelf computer software) or other agreements providing for the payment or receipt of royalties or other compensation by Seller in connection with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K intellectual property rights listed under the Securities Act caption referencing Section 4.15(a) in the Disclosure Schedule;
(xvii) all bonus, pension, phantom stock, profit sharing, retirement or other forms of deferred compensation plans, other than those described in the Disclosure Schedule under the caption referencing Section 4.19 (or excluded by such section from inclusion thereunder);
(xviii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as if described in the Company was Disclosure Schedule under the registrantcaption referencing Section 4.19 (or excluded by such section from inclusion thereunder);
(xix) lease or agreement under which it is the lessor of, or permits any third party to hold or operate, any property, real or personal;
(xx) any other agreement of Seller not entered into in the Ordinary Course of Business or that is material to the Assets, Business, financial condition or results of operation of Seller; and
(xxi) any agreement of Seller relating to the Business that is not assignable to Buyer.
(b) Except as has not had With respect to each Disclosed Contract and would not be reasonably likely to haveeach Assumed Contract, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legalSeller has performed all material obligations where such obligations were required to be performed by it thereunder, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the CompanySeller is not in receipt of any written claim of default thereunder, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor Seller has no present expectation or intention of not fully performing any of its Subsidiaries has received written notice of default or termination under any Material Contract; obligation thereunder and (iv) as Seller is not aware of any breach or anticipated breach by the other party thereto.
(c) Prior to the date hereofof this Agreement, neither Seller has made available to Buyer a true, correct and complete copy of each written Assumed Contract, together with all amendments, waivers or other changes thereto, and a written description of each oral Assumed Contract where the Company nor its Subsidiaries have waived any material rights under any Material Contractminimum annual payment obligation thereunder by either party exceeds $50,000.
Appears in 1 contract
Samples: Asset Purchase Agreement (C H Robinson Worldwide Inc)
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule 4.12 sets forth a an accurate, correct and complete list of the following material Contracts currently in effect related to the Acquired Businesses to which the Company or any of its Subsidiaries Subsidiary is a party party, by which such entity is bound or otherwise bound (the Contracts required pursuant to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectivelywhich such entity is an obligor or a beneficiary, the “Material Contracts”):written or unwritten, including but not limited to:
(i) each Contract with a Top Merchant relating to the capital stock or Top Vendorother securities of the Company or any Subsidiary;
(ii) each Contract for capital expenditures by any Acquired Company which involves amounts in excess of $25,000 in any fiscal year (other than merchant agreements entered into in the ordinary course of business, each Contract those that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018have been fully performed);
(iii) each Contract with evidencing any Related Party indebtedness or obligation of the Company or any Subsidiary for borrowed money, for the extension of Credit or the granting of Liens, for the deferred purchase price of assets (other than (Aexcluding ordinary course trade payables) offer letters for employment on an at-will basisor guaranteeing any indebtedness, (B) customary confidentiality, assignment of inventions and/or noncompetition obligation or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)liability;
(iv) each Contract evidencing wherein any Acquired Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreementis bound by a non-competition provision;
(v) each Real Property Leasejoint venture, partnership, teaming arrangement, cooperative arrangement or any other Contract involving a sharing of profits;
(vi) each Contract with any Card Association Governmental Entity other than for services or NACHA and/or each Contract with a member sale of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements property in the ordinary course of business;
(vii) each power of attorney, proxy or similar instrument granted by or to any Acquired Company;
(viii) each agreement, arrangement or understanding with any Related Party;
(ix) each Contract with respect to real property (other than those disclosed on Schedule 4.10);
(x) each agreement, arrangement or understanding with respect to intellectual property rights (which is not disclosed on Schedule 4.13);
(xi) each union or other collective bargaining agreement;
(xii) each sales agency, manufacturers representative and distributorship agreement and other distribution or commission arrangement;
(xiii) each agreement, order or commitment for the purchase of equipment, services, raw materials, supplies or finished products from any one supplier for an amount in excess of $50,000 (Aother than those that have been fully performed);
(xiv) disposition (whether by mergereach outstanding agreement, consolidationorder or commitment for the rental, lease or sale of equity equipment, products or services by an Acquired Company for more than $25,000 to any single purchaser or lessee;
(xv) each agreement requiring the consent of any party thereto to the consummation of the transactions contemplated hereby;
(xvi) each other Contract related to the Acquired Businesses or binding on any Acquired Company which involves payments in excess of $50,000, or which relates to material rights, assets or otherwiseliabilities, and is not by its express terms cancelable upon less than thirty (30) of any significant portion of the assets days' notice, or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (which was entered into other than in the ordinary course of business); and
(xvii) each contract or agreement relating to the response to environmental conditions on or off the Real Property;
(b) Current, or (C) acquisition correct and complete copies of Equity Interests each such Contract described in this Section 4.12 or, in the case of any Acquired Company (other than unwritten Contracts, descriptions thereof, have been delivered by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;to MEDIQ/PRN.
(ixc) each Each Contract that, by its terms, prohibits the Company required to be listed or any of its Subsidiaries from (A) entering into any line of business, referred to on Schedule 4.12 or from freely providing services listed or supplying products referred to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in on any other Person;
(x) each Contract in Schedule to this Agreement to which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions Subsidiary is a party, by which such entity is bound or exclusive marketing or distribution rights relating pursuant to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that which such entity is an exchange traded, over the counter obligor or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract beneficiary is in full force and effect effect. Such entity has complied with all commitments and obligations on its part to be performed or observed under each such Contract to which it is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to party. To the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to each such Contract other than the Company or a Subsidiary has complied with all commitments and obligations on its part to be performed or observed thereunder. The Company has not received any Material Contract, is in material violation, material breach notice of a default under any such Contract and no event or material condition has occurred or currently exists which constitutes a default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event whichor, after notice, notice or lapse of time or both, would constitute a default under any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Mediq PRN Life Support Services Inc)
Contracts and Commitments. (a) Section 3.14(a3.5(a) of the Company Disclosure Schedule sets forth a correct and complete list of each of the following Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) as of the Company Disclosure Schedule date hereof (collectively, the “"Material Contracts”):"): ------------------
(i) each CPD Contract with a Top Merchant or Top Vendorcreating any partnership;
(ii) other than merchant agreements entered into in the ordinary course of businessCPD Contract (including purchase orders, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software franchise agreements and other agreements for software commercially available on reasonable terms undertakings or commitments to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (Bany governmental or regulatory authority) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements not made in the ordinary course of business;
(iii) Contracts of employment with CPD Employees (including without limitation employment, change in control, golden parachute, severance or similar agreements or arrangements and other CPD Contracts with CPD Employees) and contracts for consulting services;
(iv) CPD Contracts consisting of sales commitments for integrated circuit products in excess of $100,000;
(v) any other CPD Contract involving payments by AMD in excess of $250,000 annually that are not cancelable on 30-days' notice by AMD, without payment of penalty or premium;
(vi) CPD Contract relating to, or evidences of, or guarantees of, or providing security for, Indebtedness for Borrowed Money;
(vii) material distribution, or similar contract relating to or providing for the marketing and/or distribution of the products of the Business to which AMD is a party or by which AMD is bound;
(viii) each CPD Contract for containing a covenant limiting the (A) disposition (whether by merger, consolidation, sale freedom of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than AMD to engage in the ordinary course of business), Business or (C) acquisition of Equity Interests of any Acquired Company (other than the transactions contemplated by the Company Ancillary Agreements or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014to compete with any Person;
(ix) each Contract that, Licenses by its terms, prohibits AMD of third-party Intellectual Property material to the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;Business; or
(x) each Any other CPD Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under by applicable SEC requirements or would otherwise be required law to be filed by AMD with the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the U.S. Securities Act as if the Company was the registrantand Exchange Commission.
(b) Except All of the Material Contracts on Section 3.5(a) of the Disclosure Schedule as has not had and would not be reasonably likely to have, individually or in of the aggregate, a Material Adverse Effect: (i) each Material Contract is date hereof are in full force and effect and is a constitute the legal, valid, valid and binding and enforceable obligation obligations of the Company or its applicable Subsidiary AMD and, to the knowledge Knowledge of AMD, of the Company, each other party parties thereto (subject except, in each case case, as may be limited by bankruptcy, reorganization, insolvency and similar laws of general application relating to or affecting the enforcement of rights of creditors or the relief of debtors), and to the Enforcement ExceptionsKnowledge of AMD, no condition exists or event, act or omission has occurred which, with or without notice, or lapse of time or both, would constitute a default or a basis of force majeure or other claim of excusable delay or nonperformance thereunder. Except for the consents of parties listed on Section 3.5(b) of the Disclosure Schedule (the "Required Consents"); (ii) neither the Company, no ----------------- consent of any of its Subsidiaries nor, party to the knowledge of Material Contracts is required in connection with the Company, any transactions contemplated by this Agreement and the Reorganization Agreement. No other party to any Material Contract, is in material violation, material breach Contract has notified AMD of the assertion of its right to renegotiate the terms or material default under, conditions of any Material Contract, and, to the knowledge Knowledge of the CompanyAMD, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractbasis exists.
Appears in 1 contract
Samples: Recapitalization Agreement (Advanced Micro Devices Inc)
Contracts and Commitments. (a) Section 3.14(a) 4.8 of the Company Disclosure Schedule sets forth a correct and complete list of lists the following Contracts (including all amendments, modifications and supplements thereto) to which the a Company or any of its Subsidiaries Group Member is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) as of the Company Disclosure Schedule date hereof (collectively, the “Material Company Xxxxx Xxxxxxxx Contracts”):
(i) (A) any material Contract relating to the borrowing of money or to the issuance of any note, bond, debenture or other evidence of indebtedness, or to mortgaging, pledging or otherwise placing a material Encumbrance on any securities or assets of any Company Group Member; (B) any Contract in the nature of a letter of credit, bankers’ acceptance and similar facilities involving any Company Group Member as an account party or beneficiary; (C) any Contract in the nature of a capital or direct financing lease that is required by GAAP to be treated as a long-term liability involving payments above $250,000 annually; and (D) any Contract containing material earn-out obligations or other contingent payment obligations for the deferred purchase price of property or services, in each Contract with a Top Merchant or Top Vendorcase other than any such Contracts whose liabilities will be fully discharged under the Bankruptcy Code;
(ii) any Contract involving any guaranty of any obligation for borrowed money or other material guaranty, performance or completion bond or indemnity or surety arrangement or otherwise relating to the assumption or guarantee of any obligation by or of any Company Group Member, other than merchant agreements entered into any such Contracts whose liabilities will be fully discharged under the Bankruptcy Code;
(iii) any license, sublicense, development, collaboration or royalty agreement or other Contract relating to the use by any Company Group Member of any material third-party Intellectual Property (other than commercially available software or software subject to click-through or shrink-wrap agreements);
(iv) any license, sublicense, development, collaboration or royalty agreement or other Contract relating to the use of any Intellectual Property of any Company Group Member by any third party (other than licenses granted to customers, resellers and distributors in the ordinary course of business, each Contract that involved the expenditure or receipt by the ) pursuant to which any Company and its Subsidiaries of more than Group Member receives annual payments above $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement250,000;
(v) any Contract including a covenant not to compete with any Person, Contracts granting any exclusivity or preferential right of first refusal or right of first offer to any Person or otherwise creating an exclusive relationship with a Person, in each Real Property Leasecase, to the extent such Contract materially restricts or limits the activities of any Company Group Member or the ability of any Company Group Member to engage or compete in any line of business or any geographic area or from developing or commercializing any pharmaceutical products;
(vi) each any Contract with for the acquisition or disposition of any Card Association business, any merger, consolidation, plan or NACHA and/or each Contract with a member scheme of arrangement or reorganization, or acquisition or disposition of a Card Association enabling the Company’s material amount of stock or assets of any Person or any material real property (whether by merger, sale of its Subsidiaries’ participation in such Card Association stock, sale of assets or NACHAotherwise) to the extent any Company Group Member has any remaining material obligations thereunder;
(vii) each material license other than as contemplated by the applicable Transaction Documents, any Contract that by its terms limits the payment of dividends or other material Contract pursuant to which distributions by the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessCompany;
(viii) each any Contract for the (A) disposition (whether by merger, consolidation, sale involving consideration in excess of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries$250,000 individually, and excluding Company Profits Units granted $500,000 in aggregate for Contracts involving substantially the ordinary course)same customer, supplier or subject matter, and which, in each case, entered into since January 1, 2014cannot be cancelled by the applicable Company Group Member without penalty or without more than thirty (30) days’ notice;
(ix) each Contract that, by its terms, prohibits the Company employment agreements and Contracts with independent contractors or any of its Subsidiaries from consultants which are not cancellable without material penalty or without more than thirty (A30) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Persondays’ notice;
(x) each Contract in which the any Contracts between any directors or officers of any Company Group Member or any of its Subsidiaries has granted “most favored nation” pricing provisions their Affiliates, on the one hand, and such Company Group Member or exclusive marketing or distribution rights relating to any serviceother Company Group Member, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partyon the other hand;
(xi) each material Contract concerning the establishment or operation of a partnership, that provides for any joint venture, profit sharing partnership or similar enterprise (arrangement or any Contract involving a sharing of revenues, profits, losses, costs or Liabilities between any Company Group Member, on the one hand, and any other than referral agreements and reseller agreements in Person, on the ordinary course of business)other hand;
(xii) each any “single source” supply Contract pursuant to which goods or materials that is are material to the Company Business are supplied to any Company Group Member from an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;exclusive source; or
(xiii) each any Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantGovernmental Entity.
(b) The Plan Investor either has been supplied with, or has been given access to, a true, correct and complete copy of all written Company Xxxxx Xxxxxxxx Contracts or a summary of all oral Company Xxxxx Xxxxxxxx Contracts. Except as (i) set forth in the Plan, or (ii) has not had and would not reasonably be expected to have a Company Material Adverse Effect, each Company Xxxxx Xxxxxxxx Contract (assuming due power and authority of, and due execution and delivery by, the other party or parties thereto) is in full force and effect and is valid, binding and enforceable against the applicable Company Group Member and, to the Company’s Knowledge, the other parties thereto, in accordance with their respective terms (except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors rights).
(c) Except as has not had and would not reasonably be reasonably likely expected to have, individually have a Company Material Adverse Effect or except as set forth in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation Plan or on Section 4.8 of the Company Disclosure Schedule, (A) within the one-year period preceding the date of this Agreement, no Company Group Member has violated or its applicable Subsidiary andbreached, to the knowledge of the Company, each other party thereto (subject or committed any default in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default respect under, any Company Group Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) Contract that remains uncured as of the date hereof, neither and (B) to the Company’s Knowledge, as of the date of this Agreement, no other Person has violated or breached, or committed any default in any respect under, any Company nor its Subsidiaries have waived Xxxxx Xxxxxxxx Contract that remains uncured as of the date hereof; and (C) as of the date of this Agreement, no event has occurred and is continuing through any material rights under Company Group Member’s actions or inactions, as applicable, that will result in a violation or breach in any Material respect of any of the provisions of any Company Xxxxx Xxxxxxxx Contract.
Appears in 1 contract
Samples: Plan Funding Agreement (Novelion Therapeutics Inc.)
Contracts and Commitments. (a) Set forth in Section 3.14(a4.11(a) of the Company Disclosure Schedule sets forth Letter is a correct complete and complete accurate list of each of the following Contracts with respect to which the Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):Company:
(i) each a Contract with a Top Merchant that purports to limit, curtail or Top Vendorrestrict the ability of the Company to compete in any geographic area or line of business or restrict the Persons to whom the Company may sell products or provide services that is binding on the Company post-Closing;
(ii) other than merchant agreements a Contract entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by any Xxxxxx Entity and binding on the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelvepost-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018Closing;
(iii) each a Contract with any Related Party (other than (A) offer letters for employment on an at-will basisrelating to or involving a partnership, (B) customary confidentiality, assignment of inventions and/or noncompetition franchise or other a joint venture or similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)arrangement;
(iv) each a Contract evidencing Company Indebtednessfor the acquisition, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreementlease of material properties or assets (by merger, equipment obligation purchase or lease purchase agreementsale of stock or assets) entered into since January 1, 2005;
(v) each Real Property Lease;
(vi) each a Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to under which the Company has borrowed any money or issued any of its Subsidiaries grants or receives rights in or to use any material Intellectual Propertynote, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with licensebond, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants indenture or other customers similar evidence of Indebtedness or guaranteed Indebtedness of others, other than endorsements for the Company or any purpose of its Subsidiaries collection and Indebtedness to trade creditors, in the ordinary course of business and (C) referral agreements and reseller agreements each case, in the ordinary course of business;
(viiivi) a mortgage, pledge, security agreement, deed of trust or other document, in each case granting any Lien on any asset or property of the Company, except for Permitted Liens;
(vii) a Contract for the with an insurance carrier that (A) disposition (whether includes commissions or other consideration in connection with the sale or renewal of insurance policies or related products or services provided by mergerthe Company, consolidationin each case, sale of equity or assets or otherwise) of any significant portion of the assets or business of accounting for net revenues to the Company and its Subsidiaries, taken as a whole, in excess of $100,000 in fiscal year 2008 or (B) acquisition of any significant portion of grants to the assets Company “binding authority” (as such terms are generally understood in the insurance industry) in connection with Contracts with insurance carriers;
(viii) a Contract (including all related Contracts) not otherwise disclosed under this Section 4.11(a) containing outstanding obligations or business or any Equity Interests consideration (whether by merger, consolidation, purchase or not measured in cash) in excess of equity $50,000 in the aggregate or assets or otherwise) of $25,000 in any other Person twelve (12)-month period other than Contracts with insurance carriers or retail brokers or agents entered into in the ordinary course of business);
(ix) with respect to the Business Employees or other service providers of the Company, an employment or consulting agreement, any commission plan or agreement, severance agreement, retention agreement or “change of control” agreement;
(x) a lease or Contract under which the Company is lessee of, or holds or uses, any tangible personal property owned by a third party at an annual payment in excess of $25,000 per annum;
(Cxi) a Transferred Real Property Lease;
(xii) a Contract relating to the disposition or acquisition of Equity Interests of any Acquired Company (other than by the Company after the date of this Agreement of assets with a fair market value in excess of $25,000;
(xiii) any acquisition Contract pursuant to which the Company has “earn-out” or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course)other contingent purchase price obligations, in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits that have not been paid in full prior to the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligationsdate hereof; orand
(xiv) will be required any commitment or agreement to be filed with enter into any of the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantforegoing.
(b) Except All of the foregoing (whether written or oral), including all amendments or modifications thereto, and all IP Licenses are sometimes collectively referred to as “Material Contracts”. The Company has not had made available to the Buyer true and would not be reasonably likely to havecorrect copies of all Material Contracts (or descriptions thereof, individually or in the aggregatecase of oral contracts). Each Material Contract (or description) sets forth the entire agreement and understanding between the Company and the other parties thereto. The Company is not (with or without the lapse of time or the giving of notice, a or both) in breach or default under any Material Adverse Effect: (i) each Contract and, to the Knowledge of the Company, no other party to any such Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. The Company is not aware of any event or condition which has occurred or exists which would cause the acceleration of any obligation or loss of any rights of any party to any Material Contract or give rise to any right of termination or cancellation thereof. All of the Material Contracts are in full force and effect and is a legal, valid, are valid and binding and enforceable obligation obligations of the Company or its applicable Subsidiary and, (to the knowledge extent binding obligations of the Company, each other party thereto (subject parties thereto) enforceable in each case accordance with their respective terms except to the Enforcement extent such enforcement may be limited by the Bankruptcy and Equity Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contract.
Appears in 1 contract
Contracts and Commitments. Except for agreements disclosed on the Microgyn Disclosure Schedule:
(a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of its Subsidiaries Microgyn is not a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):subject to:
(i) each Contract Any union contract or collective bargaining agreement or any employment contract or arrangement, written or oral, providing for future compensation with any officer, consultant, director or employee which is not terminable by it on 30 days' notice or less without penalty or obligation to make payments related to such termination, other than (A) (in the case of employees other than executive officers) such severance agreements as are not different from standard arrangements offered to employees generally in the ordinary course of business consistent with Microgyn's past practices, a Top Merchant description of which is set forth in the Microgyn Disclosure Schedule and (B) such agreements as may be imposed or Top Vendorimplied by law;
(ii) Any plans, contracts or arrangements, written or oral, which collectively require aggregate payments by Microgyn in excess of $25,000 for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or the like;
(iii) Any joint marketing, joint development or joint venture contract or arrangement or any other than merchant agreements entered into agreement which has involved or is expected to involve a sharing of profits with other persons;
(iv) Any existing OEM agreement, distribution agreement, volume purchase agreement, or other similar agreement in which the annual amount involved is expected to exceed in 1996 or any subsequent year, $5,000 or pursuant to which Microgyn has granted or received most favored customer provisions or exclusive marketing rights related to any product, group of products or territory;
(v) Any lease for real or personal property pursuant to which the amount of payments which Microgyn is required to make on an annual basis exceeds $5,000;
(vi) Any agreement, contract, mortgage, indenture, lease, instrument, license, franchise, permit, concession, arrangement, commitment or authorization which may be, by its terms, terminated or breached by reason of the execution of this Agreement, the Articles of Merger or any Microgyn Ancillary Agreement, the closing of the Merger, or the consummation of the transactions contemplated hereby or thereby, including the Subsequent Merger;
(vii) Except for trade indebtedness incurred in the ordinary course of business, each Contract that involved the expenditure any instrument evidencing or receipt by the Company and its Subsidiaries related in any way to indebtedness in excess of more than $500,000 5,000 incurred in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries acquisition of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition companies or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtednessentities or indebtedness in excess of $5,000 for borrowed money by way of direct loan, including any loan or credit agreementsale of debt securities, security agreement, guaranty, indenture, mortgage, pledgepurchase money obligation, conditional sale sale, guarantee, indemnification or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessotherwise;
(viii) each Contract for the (A) disposition (whether by mergerAny license agreement, consolidation, sale of equity either as licensor or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014licensee;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into Any contract containing covenants purporting to limit Microgyn's freedom to compete in any line of business, or from freely providing services or supplying products to any customer or potential customer, business or in any territory geographic area or (B) purchasing or acquiring an interest in with any other Personthird party;
(x) each Contract in which the Company Any agreement, contract or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights commitment relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;capital expenditures and involving future obligations in excess of $5,000; or
(xi) each Contract concerning the establishment Any other agreement, contract or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that commitment which is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantMicrogyn's Business.
(b) Except as has not had Each agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and would not be reasonably likely to have, individually or commitment listed in the aggregate, a Material Adverse Effect: (i) each Material Contract Microgyn Disclosure Schedule is valid and binding on Microgyn and is in full force and effect effect, and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries Microgyn nor, to the knowledge of the CompanyMicrogyn, any other party to thereto, has breached any Material Contractmaterial provision of, or is in material violation, material breach or material default underunder the terms of, any Material Contractsuch agreement, andcontract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license or commitment.
(c) There is no agreement, judgment, injunction, order or decree binding upon Microgyn which has or could reasonably be expected to have the knowledge effect of the Company, there exists no condition prohibiting or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived materially impairing any material rights under current business practice of Microgyn, any Material Contractacquisition of material property by Microgyn or the conduct of business by Microgyn as currently conducted or as proposed to be conducted by Microgyn in the Microgyn Business Plan.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Conceptus Inc)
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list 7.14 lists all of the following Contracts to which the Company or any of its Subsidiaries is a party or otherwise by which the Company, any of its Subsidiaries or any of their respective assets are bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each (A) Any Contract with a Top Merchant pursuant to which payments in excess of $25,000 (1) were made by the Company or Top Vendorany of its Subsidiaries to any Person during the one (1) year period ended on the Latest Balance Sheet Date, or (2) are reasonably anticipated by the Company or any of its Subsidiaries, as of the date hereof, to be made to any Person during the one (1) year period ending on the first anniversary of the Latest Balance Sheet Date, and (B) any Contract pursuant to which payments in excess of $25,000 (A) were received by the Company or any of its Subsidiaries during the one (1) year period ended on the Latest Balance Sheet Date or (B) are reasonably anticipated by the Company or any of its Subsidiaries to be received during the one (1) year period ending on the first anniversary of the Latest Balance Sheet Date by or to the Company or any of its Subsidiaries;
(ii) other than merchant agreements entered into in any Contract relating to the ordinary course hosting of business, each Contract that involved the expenditure or receipt any web site operated by the Company and or any of its Subsidiaries of more than $500,000 in connection with the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018Business;
(iii) each any Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment third party containing any covenant that restricts the ability of inventions and/or noncompetition the Company or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)any of its Subsidiaries to compete or conduct any business in any geographic area or market;
(iv) each any Contract evidencing Company Indebtedness, including any loan which contains a “most favored customer” or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreementsimilar provision;
(v) each Real Property Leaseany Contract under which the Company or any of its Subsidiaries has created, incurred, assumed, guaranteed or secured Indebtedness currently outstanding or otherwise create or relate to any Lien on any of the Assets;
(vi) any Contract relating to outstanding letters of credit or performance bonds or creating any Liability as guarantor, surety, co-signer, endorser, co- maker or indemnitor, in each Contract with case in respect of the obligation of any Card Association third party to make payments or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHAperform services;
(vii) any Contract relating to the acquisition or disposition of any material business, operations or division (whether by merger, sale of stock, sale of assets or otherwise);
(viii) any collective bargaining agreement;
(ix) any Contract relating to the acquisition, transfer, development, sharing or license of any Intellectual Property that is material to the Business and other than non-exclusive licenses to use the Owned Intellectual Property contained in the Business’ standard customer contracts entered into in the Ordinary Course of Business, including any Contract relating to the ownership, marketing or sale of any products, except for (A) licenses implied by the sale of goods and (B) shrink-wrap and click-wrap software licenses, end-user licenses and licenses to software generally commercially available, in each material license case with a replacement cost of less than $15,000;
(x) any Contract concerning the establishment, control, maintenance or operation of a partnership, joint venture or limited liability company or other similar agreement or arrangement;
(xi) any Contract for capital expenditures or the acquisition or construction of fixed assets which require aggregate future payments in excess of $25,000 over the remaining life of such agreement;
(xii) any Contract relating to the settlement of any material Proceeding or the waiver or release of any material rights or material claims in respect of any Proceeding;
(xiii) any Contract requiring the Company or any of its Subsidiaries to indemnify any person, except for standard indemnification provisions in Contracts entered into by the Company in the Ordinary Course of Business;
(xiv) any Contract granting any exclusive rights to any party;
(xv) any Contract with any Governmental Authority which is material to the Business;
(xvi) any Contract with any director, officer or Affiliate of any Shareholder Party;
(xvii) any Contract relating to the employment of, or the performance of services by, a Company Employee or consultant (excluding any offer letters relating to at-will employment), or pursuant to which the Company or any of its Subsidiaries grants is or receives rights in may become obligated to make any severance, termination or similar payment or provide post-employment benefits to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms current or former employee or director; or pursuant to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of which the Company or any of its Subsidiaries in the ordinary course of business and is or may become obligated to make any bonus or similar payment (Cother than payments constituting base salary) referral agreements and reseller agreements in the ordinary course of businessto any current or former employee or director;
(viiixviii) each any Contract for the (A) disposition (whether by mergerrelating to the acquisition, consolidationissuance, voting, registration, sale of equity or assets or otherwise) transfer of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a wholesecurities, (B) acquisition providing any person or entity with any preemptive right, right of any significant portion participation, right of the assets or business maintenance or any Equity Interests (whether by merger, consolidation, purchase of equity similar right with respect to any securities or assets or otherwise) of any other Person (other than in the ordinary course of business)assets, or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits providing the Company or any of its Subsidiaries from (A) entering into with any line right of businessfirst refusal with respect to, or from freely providing services right to repurchase or supplying products to redeem, any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Personsecurities;
(xxix) each any Contract granting powers of attorney or similar authorizations by the Company or any of its Subsidiaries to third parties;
(xx) any Contract under which the amount payable by or to the Company or any Subsidiaries is dependent on the revenues, income or similar measure of the Business, or in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions is obligated to pay royalties, commissions or exclusive marketing or distribution rights relating similar payments to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partyPerson based on the Business;
(xixxi) each any Contract concerning the establishment with any Customer or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);Key Supplier; and
(xiixxii) each any Contract not otherwise described in Schedule 7.14 entered into outside the Ordinary Course of Business that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a otherwise material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to or the knowledge of Business.
(b) Each Material Contract was entered into at arms’ length and in the Company, any other party to any Material Contractordinary course, is in material violation, material breach or material default under, any Material Contract, full force and effect and, is valid and binding upon the Company or its Subsidiary, as applicable, and to Shareholders’ Knowledge, enforceable against each of the other parties thereto (subject to the knowledge General Enforceability Exceptions). True, correct and complete copies of all Material Contracts (including all, schedules, exhibits, amendments, supplements, renewals, extensions and guarantees thereto) have previously been made available to Akerna.
(c) None of the Company, there exists no condition Company or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice is in default under or in material breach of nor in receipt of any claim of default or termination material breach under any Material Contract; and (iv) as no event has occurred which with the passage of time or the date hereof, neither giving of notice or both would result in a default or material breach by the Company nor or any of its Subsidiaries have waived any material rights under any such Material Contract. To Shareholders’ Knowledge, no other party to any Material Contract is in default under or in breach of such Material Contract and no event has occurred which with the passage of time or giving of notice or both would result in a material default or breach by any such party under any such Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) As of the Company Disclosure Schedule sets date hereof and except as set forth a correct and complete list in Section 2.13 of the following Contracts to which the Company or Keryx Disclosure Letter, neither Keryx nor any of its Subsidiaries is a party to or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):by any
(i) each Contract “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with a Top Merchant respect to Keryx or Top Vendorany of its Subsidiaries that was required to be, but has not been, filed with the SEC with Keryx’s Annual Report on Form 10-K for the year ended December 31, 2017, or any Keryx SEC Documents filed after the date of filing of such Form 10-K until the date hereof;
(ii) Contract (A) relating to the disposition or acquisition by Keryx or any of its Subsidiaries of a material amount of assets or equity (1) after the date of this Agreement, other than merchant agreements entered into the sale of inventory in the ordinary course of businessbusiness consistent with past practice, each Contract or (2) prior to the date hereof, which contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other contingent obligations) that involved the expenditure are still in effect that are reasonably likely to result in claims in excess of $1,000,000 or receipt by the Company and (B) pursuant to which Keryx or any of its Subsidiaries will acquire or dispose of more any material ownership interest in any other person or other business enterprise other than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018Keryx’s Subsidiaries;
(iii) each collective bargaining agreement or Contract with any Related Party labor union, trade organization or other employee representative body (other than (A) offer letters for employment on an atany statutorily mandated agreement in non-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit ArrangementsU.S. jurisdictions);
(iv) each Contract evidencing Company Indebtednessestablishing any joint ventures, including any loan partnerships, collaborations or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreementsimilar arrangements;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off prohibiting or materially limiting the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees right of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants Keryx or other customers of the Company or any of its Subsidiaries (1) to compete in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products (2) to conduct business with any customer or potential customer, Person or in any territory geographical area, or (3) to develop or commercialize compounds with respect to any therapeutic area, class of drugs or mechanism of action, (B) purchasing obligating Keryx or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single partyparty or (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of Keryx or its Subsidiaries on an exclusive basis to any Person or group of Persons or in any geographical area;
(vi) Contract in respect of Indebtedness of $1,000,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice;
(vii) Contract (other than a Keryx Plan) between Keryx, on the one hand, and any Affiliate of Keryx (other than a Subsidiary of Keryx), on the other hand;
(viii) Contract relating to the voting or registration of any securities;
(ix) Contract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Keryx or its Subsidiaries;
(x) Contract under which Keryx or Keryx’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $2,500,000 during the current or a subsequent fiscal year;
(xi) each Contract concerning the establishment Settlement agreement, or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract agreement entered into in connection with a settlement agreement, corporate integrity agreement, consent decree, deferred prosecution agreement, or other similar type of agreement with any Governmental Bodies or Keryx Regulatory Agencies that has existing or contingent performance obligations;
(xii) Contract of Keryx or any of its Subsidiaries relating to the settlement of any litigation proceeding that provides for any continuing material settlement obligations on the part of Keryx or any of its Subsidiaries;
(xiii) Contract of Keryx or any of its Subsidiaries that prohibits, limits or restricts the payment of dividends or distributions in respect of the capital stock of Keryx or any of its Subsidiaries or otherwise prohibits, limits or restricts the pledging of capital stock of Keryx or any of its Subsidiaries or prohibits, limits or restricts the issuance of guarantees by Keryx or any of its Subsidiaries;
(xiv) IP Contract;
(xv) Contract with any payor, wholesaler, distributor, dialysis organization (other than clinical trial agreements with a dialysis organization), pharmacy or governmental payor;
(xvi) master services or similar Contract with any third party manufacturer or supplier for the manufacture and/or supply of materials or products in the supply chain for Products (but excluding statements of work or similar documentation thereunder);
(xvii) Contract providing for any guaranty by Keryx or any of its Subsidiaries of third-party obligations (under which Keryx or any Acquired Company of its Subsidiaries has material outstanding continuing obligations as of the date hereof) of $1,000,000 or more, other than any guaranty by Keryx or any of its Subsidiaries’ obligations;
(xviii) Contract with any Healthcare Provider obligating Keryx or any of its Subsidiaries to make over $250,000 in annual payments in the aggregate (including, without limitation, cash, stock options, royalties and any other form of compensation) to such Healthcare Provider; or
(xivxix) will be required Contract to be enter into any of the foregoing. Each such Contract described in clauses (i) through (xviii) of this Section 2.13 or excluded therefrom due to the exception of being filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1)the Keryx SEC Documents, (2), (4), (9) or (10together with each Keryx Real Property lease listed in Section 2.11(b) of Regulation S-K under the Securities Act Keryx Disclosure Letter, is referred to herein as if the Company was the registranta “Keryx Material Contract.”
(b) Akebia has been given access to a true and correct copy of all written Keryx Material Contracts, together with all material amendments, waivers or other changes thereto, and a correct and complete written summary setting forth the terms and conditions of each oral Keryx Material Contract.
(c) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, have a Material Adverse Effectmaterial impact on Keryx: (i) each none of Keryx or any of its Subsidiaries (A) is, or has received written notice that any other party to any Keryx Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Keryx Material Contract to which it is a party or any of its properties or other assets is subject, (ii) there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Keryx Material Contract and (iii) each such Keryx Material Contract, unless expired pursuant to its terms, is in full force and effect and is a legal, validvalid and binding agreement of, binding and enforceable obligation of the Company against, Keryx or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material ContractSubsidiary, and, to the knowledge Knowledge of the CompanyKeryx, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as each other party thereto. As of the date hereof, neither no party to any Keryx Material Contract has given any written notice of termination or cancellation of any Keryx Material Contract or that it intends to seek to terminate or cancel any Keryx Material Contract (whether as a result of the Company nor its Subsidiaries have waived any material rights under any Material ContractContemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Contracts. Schedule 4.5 sets forth a correct complete and complete --------- ------------ accurate list of all material Contracts that primarily pertain to the Assets, including, without limitation, those in the following Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):categories:
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements Contracts not made in the ordinary course of business;
(ii) Any Contract between either Seller Party and a ten percent (10%) stockholder of Seller or an Affiliate thereof,
(iii) Vendor, distribution, equipment lease, franchise, license, technical assistance, sales, commission, consulting, agency or advertising contracts primarily related to the Assets or the Business;
(iv) Any licensing, website hosting, website linking, content or data sharing, data feed, information exchange, advertising, distribution, fee sharing, lead or customer referral, commerce, co-branding, escrow services, order or transaction processing or similar Contract primarily related to the Assets or the Business;
(v) Options with respect to any of the Assets, whether either Seller Party shall be the grantor or grantee thereunder;
(vi) Contracts involving future expenditures or Liabilities, actual or potential, in excess of Ten Thousand Dollars ($10,000.00);
(vii) Contracts or commitments relating to commission arrangements with others primarily related to the Assets or the Business;
(viii) each Contract for Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or other instruments relating to an obligation to pay money, whether either Seller Party shall be the (A) disposition (whether by mergerborrower, consolidation, sale of equity lender or assets guarantor thereunder or otherwise) of whereby any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014Assets are pledged;
(ix) each Contract that, by its terms, prohibits Contracts containing covenants limiting the Company freedom of either Seller Party or any of its Subsidiaries from (A) entering into any line of businessAffiliates, or from freely providing services or supplying products that will limit the freedom of Buyer, to any customer or potential customer, engage in the Business or in any territory or (B) purchasing or acquiring an interest in any other Person;business related thereto; and
(x) each Any Contract in which with the Company United States, state or local government or any agency or department thereof. Seller has delivered to Buyer and its legal counsel true, correct and complete copies of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning all of the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based Contracts listed on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangibleSchedule 4.5, including currencies, interest rates, foreign currency all amendments ------------ and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantsupplements thereto.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a5.19(a) of the Company GNN Disclosure Schedule sets forth a correct and complete list Letter lists all of the following Contracts to which the Company or any of its Subsidiaries GNN is a party or otherwise bound by which GNN benefits or is subject (the Contracts required or by which its Assets are subject), all of which have been made available to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):WebMD for review:
(i) each any Contract with a Top Merchant for the employment of any officer, director, employee or Top Vendorconsultant that is not terminable at will;
(ii) other than merchant agreements entered into any Contract for the purchase, sale, production, supply, maintenance or support, whether on a continuing basis or otherwise, of goods or services of any type involving in the ordinary course any one case (or group of business, each Contract that involved the expenditure related Contracts) $100,000 or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018more;
(iii) each any (A) Contract or license to which GNN is a party (1) with respect to any Related Party Intellectual Property of GNN licensed or transferred to any third party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive end user licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C2) acquisition of Equity Interests of pursuant to which any Acquired Company third party has licensed or transferred any Intellectual Property to GNN (other than by the Company or its Subsidiaries, shrink wrap and excluding Company Profits Units granted in the ordinary coursesimilar widely available commercial end user licenses), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest other Material Contract related to Intellectual Property used by GNN in any other Personits business as currently conducted;
(xiv) each any sales or vendor Contract or sub-contract involving in which the Company any one case (or any group of its Subsidiaries has granted “most favored nation” pricing provisions related Contracts) $100,000 or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partymore;
(xiv) each any Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements not made in the ordinary course of business), including but not limited to any management agreements;
(vi) any Contracts pursuant to which any of GNN's product or pages therein are linked with other web sites or pages therein; Contracts with web site hosts or Internet access providers; Contracts regarding data center hosting or security; Contracts relating to advertising or sponsorships; Contracts providing for the use, display or distribution of third party content, information or data or the provision of services through GNN's product; Contracts regarding continuing medical education programs; Contracts regarding the establishment or maintenance of networks, telecommunication links, virtual private networks or other similar non-public networks;
(vii) any Contracts that are, in the reasonable opinion of GNN, Materially adverse, onerous or otherwise harmful to GNN's business, operations or Assets;
(viii) any strategic alliance agreements;
(ix) any Contracts upon which the business, rights or Assets, or condition, financial or otherwise, of GNN depends or which involve payments of greater than $50,000;
(x) any Contract currently in force relating to the disposition or acquisition by GNN after the date of this Agreement of any amount of Assets not in the ordinary course of business or pursuant to which GNN has a Material ownership interest in any Person, joint venture or other business enterprise;
(xi) any joint marketing or development agreement currently in force under which GNN has continuing obligations to jointly market any product, technology or service;
(xii) each any Contract currently in force to provide services or goods to any third party for any product or technology that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicesMaterial to GNN;
(xiii) each any Contract entered into currently in connection force to sell or distribute any GNN products, services or technology except agreements with a material settlement under which any Acquired Company has material outstanding obligationsdistributors or sales representatives in the normal course of business cancelable without penalty upon 90 days or less notice and substantially in the form previously provided to WebMD; orand
(xiv) will be required any mortgage, indenture, guarantee, loans or credit agreements, security agreements or other agreements or instrument relating to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantFunded Debt.
(b) Except as has not had and would not be reasonably likely to haveContracts that are cancelable at will or upon 30 days' notice or less, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract of the Contracts described in this Section 5.19 is in full force and effect and is a legalon the date hereof, validexcept as the validity of such Contracts may be affected by actions, binding and enforceable obligation events or conditions involving only the other party thereto, none of the Company which actions, events or its applicable Subsidiary andconditions have, to the knowledge of the CompanyGNN, each other party thereto (subject in each case to the Enforcement Exceptions); occurred or exist, (ii) neither the Company, no material Default under any of its Subsidiaries northe terms or conditions set forth in any of the Contracts to which GNN is a party or any document or instrument related thereto has occurred or been asserted by any party, (iii) there has been no actual, or to the knowledge of the CompanyGNN, threatened termination, cancellation or limitation of any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse Contracts listed in Section 5.19(a) of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; GNN Disclosure Letter and (iv) the continuation, validity and effectiveness of such Contracts, and all other Material terms thereof, will not be affected by the transactions contemplated by this Agreement. Except as set forth in Section 5.19(b) of the date hereofGNN Disclosure Letter, neither no Contract described in this Section 5.19 requires the Company nor consent of any party to its Subsidiaries have waived any material rights under any Material Contractassignment in connection with the transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Healtheon Corp)
Contracts and Commitments. (a) Section 3.14(a) The “Contracts Schedule” attached hereto lists all of the following written agreements to which any member of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of its Subsidiaries Group is a party or otherwise bound (the Contracts required to be set forth and which are in Section 3.14(a) effect as of the Company Disclosure Schedule collectively, the “Material Contracts”):date hereof:
(i) each Any Contract with a Top Merchant providing for payments by or Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course to any member of business, each Contract that involved the expenditure or receipt by the Company Group for products (including raw materials and its Subsidiaries packaging) or services (A) under which the undelivered balance of more than such products or services has a purchase or sale price in excess of $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 3,000,000 or (B) that otherwise involves or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries consideration in excess of more than $500,000 3,000,000 in the aggregate to any one Person during the one (1) year period after the date hereof, other than, in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basisall cases, (Bx) customary confidentialityContracts which may be terminated, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtednesswithout penalty, including by any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company Group on notice of ninety (90) days or any of its Subsidiaries in the ordinary course of business less and (Cy) referral agreements and reseller agreements purchase orders for the sale of goods to customers or purchase of inventory, supplies and/or equipment, in each case, in the ordinary course of business;
(viiiii) each any Contract which involves commitments to make capital expenditures in excess of $3,000,000,
(iii) Contracts relating to Indebtedness of the Company Group or any guaranty by any member of the Company Group of any obligation in respect of borrowed money;
(iv) Contracts of guaranty, surety or indemnification by any member of the Company Group, except for provisions for indemnification contained in agreements entered into in the ordinary course of business (other than for indebtedness for borrowed money);
(v) Contracts under which any member of the Company Group has made advances or loans to any other Person, except (A) disposition advancement of reimbursable ordinary and necessary business expenses made to directors, officers and employees of any member of the Company Group or (whether B) to the extent made in the ordinary course of business;
(vi) employment and consulting agreements (other than any agreement for “at-will” employment) providing for aggregate payments to any Person in any calendar year in excess of $150,000 or which provide for any payments or benefits (other than benefits payable at common law or under statute) upon (A) such individual’s termination of employment or (B) a change in control of such Company Group member;
(vii) collective bargaining agreements or Contracts with any labor union;
(viii) material Contracts relating to the marketing, sale, advertising or promotion of its products or services involving consideration in excess of $500,000;
(ix) all confidentiality, secrecy or non-disclosure Contracts (other than those entered into in the ordinary course of business or in connection with the transactions contemplated by mergerthis Agreement), consolidationor other Contracts imposing any material restriction, sale limitation or impediment on the right or ability of equity any member of the Company Group to engage in or assets conduct any line of business, compete with any other Person or otherwisesolicit any customer, employee or other service provider, operate the manufacturing facilities at maximum production capacity or otherwise conduct its business;
(x) Contracts with respect to any partnership or joint venture;
(xi) Contracts between or among any member of the Company Group, on the one hand, and any of the Company Stockholders or any current or former officer, director, stockholder or Affiliate (other than the Company Group) of any significant portion of the assets or business member of the Company and its SubsidiariesGroup, taken as a wholeon the other hand, other than any benefit plan or employment Contracts;
(Bxii) acquisition Contracts for the sale of any significant portion material assets of any member of the assets or business or any Equity Interests Company Group in the past three (whether by merger3) years, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ixxiii) each Contract that, Contracts relating to the acquisition by its terms, prohibits any member of the Company Group of any operating business or any the capital stock of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
Person in the past three (x3) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (years other than referral agreements and reseller agreements in the ordinary course of business;
(xiv) Contracts for the development, license or use of Proprietary Rights (excluding (A) non-exclusive licenses granted by the Company Group in the ordinary course of business consistent with past practices, (B) assignment agreements entered into with employees of the Company Group in the ordinary course of business consistent with past practices, (C) agreements for standard off-the-shelf software having a replacement cost of less than $250,000) and (D) Contracts assigning to the Company Group ownership of Proprietary Rights (other than agreements with employees or contractors);
(xiixv) each Contract that Contracts pursuant to which any member of the Company Group is an exchange traded, over the counter a lessor or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index a lessee of any kind property, personal or nature whatsoeverreal, whether or holds or operates any tangible personal property owned by another Person, except for any leases of personal property under which the aggregate annual rent or intangible, including currencies, interest rates, foreign currency and indiceslease payments do not exceed $250,000;
(xiiixvi) each Contract entered into any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution date of this Agreement for consideration in connection with a material settlement under which any Acquired Company has material outstanding obligationsexcess of $250,000 in the aggregate or governmental monitoring, consent decree or reporting responsibilities outside the ordinary course of business; orand
(xivxvii) will be required Contracts that require any member of the Company Group to be filed with use any supplier or third party for all or substantially all of such member of the Registration Statement under applicable SEC Company Group’s requirements or would otherwise be required to be filed by needs or requires such member of the Company as an exhibit for Group to provide a Form S-1 pursuant third party “most favored nation” or similar protective pricing terms, in each case only to Items 601(b)(1), the extent such Contract is reasonably expected to require payments from any party thereto of $1,000,000 or more during any twelve (2), (4), (912) or (10) of Regulation S-K under month period occurring after the Securities Act as if the Company was the registrantClosing Date.
(b) The Company has made available to the Purchaser or its representatives a true, correct and complete copy of each Contract set forth on the “Contracts Schedule,” together with all amendments, modifications or supplements thereto, other than any Contract which is an oral Contract. Except as has not had and would not be reasonably likely to have, individually or in disclosed on the aggregate, a Material Adverse Effectattached “Contracts Schedule”: (i) each Material no Contract set forth on the attached “Contracts Schedule,” has been breached in any material respect by the Company or canceled by the other party thereto, which breach or cancellation has not been duly cured or reinstated; (ii) no member of the Company Group is in full force receipt of any written claim of default under any such Contract dated less than ten days prior to the date of this Agreement; and effect and (iii) each Contract listed on the attached “Contracts Schedule” is a legal, valid, binding and enforceable obligation against the Company or one or more members of the Company Group, as applicable, except as such enforceability may be limited by (A) applicable insolvency, bankruptcy, reorganization, moratorium or its applicable Subsidiary andother similar Laws affecting creditors’ rights generally, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (ivB) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractapplicable equitable principles (whether considered in a proceeding at law or in equity).
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) of the Company The NAI Disclosure Schedule sets forth a correct and complete list of the following Contracts lists all ------------------------- contracts to which the Company or any of its Subsidiaries NAI Contributed Entity is a party or otherwise by which it or the NAI Contributed Businesses or their respective assets are bound (the Contracts required that are to be set forth performed in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, whole or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which part after the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements date hereof and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will would be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by Securities and Exchange Commission (the Company "Commission") as an exhibit for a Form S-1 "material contracts" pursuant to Items 601(b)(1), (2), (4), (9) or (10) Item 601 of Regulation S-K under the Securities Act of 1933, as amended (the "Securities Act") if such NAI Contributed Entity was a registrant registered under Section 12(g) of the Company was Exchange Act of 1934, as amended (the registrant.
"Exchange Act"). The NAI Disclosure Schedule also lists (ba) Except as has not had and would not be reasonably likely to haveall agreements, individually bonds, notes, debentures or in the aggregate, a Material Adverse Effect: similar instruments evidencing (i) each Material Contract is indebtedness of any NAI Contributed Entity for borrowed money or for the deferred purchase price of any material property or service (other than trade accounts arising in full force and effect and is a legalthe ordinary course of business), valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Companyobligations of any NAI Contributed Entity under capital leases, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor guaranties by any NAI Contributed Entity of its Subsidiaries has received written notice liabilities or obligations of default or termination under any Material Contract; others, and (iv) any Liens on the assets of any NAI Contributed Entity, (b) agreements that limit the right of any NAI Contributed Entity to compete in any line of business; (c) agreements which, after giving effect to the transactions contemplated hereby, purport to restrict or bind NAI or any of its subsidiaries, other than the NAI Contributed Entities; (d) all agreements not in the ordinary course of business pursuant to which there is any continuing liability or obligation, including without limitation any indemnification obligation; (e) merger, acquisition and similar agreements that have any surviving obligations not performed in full, including without limitation, any indemnity obligation; (f) agreements with any affiliate of such NAI Contributed Entity; (g) any agreements not terminable on less than 75 days notice without penalty and involving amounts in excess of $6,000,000 during the 1997 fiscal year, reasonably expected during 1998, or as projected over the remainder of the date hereofstated fixed term of the applicable agreement; and (h) any collective bargaining or similar agreements. True and complete copies of all agreements listed in the NAI Disclosure Schedule have been made available to UVSG. Each of the NAI Contributed Entities has fulfilled in all material respects, neither or taken all actions necessary to enable it to fulfill in all material respects when due, its obligations under each of such agreements to which it is a party. To the Company nor its Subsidiaries knowledge of NAI, all parties thereto other than the NAI Contributed Entities have waived complied in all material respects with the provisions thereof and no party is in breach or violation of, or in default (with or without notice or lapse of time, or both) under such agreements which breach, violation or default is reasonably likely to have a Publications Material Adverse Effect. No NAI Contributed Entity has received any material rights under notice of termination, cancellation or acceleration of any Material Contractsuch agreement.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) Schedule 3.13 of the Company Disclosure Schedule sets forth Letter contains a correct complete and complete accurate list of the following Contracts Company Contracts, and the Companies have delivered to which the Buyer true, correct and complete copies of all such Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”)::
(i) each Company Contract relating to Material Customers (the “Material Customer Contracts”) except that (A) with respect to Material Customer Contracts with MSP and VMS customers, Schedule 3.13(a)(i) of the Disclosure Letter need only set forth the Material Customer’s name and a Top Merchant list of the hospitals or Top Vendorother healthcare facilities to which services are being provided by the Companies through such Material Customer and (B) with respect to the Material Customer Contracts referenced in clause (A) above, the Companies have delivered to Buyer true, complete and correct copies of each subcontractor agreement with respect to the applicable Material Customer;
(ii) other than merchant agreements entered into in each Company Contract relating to Material Suppliers, excluding Contracts with healthcare providers (the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018“Material Supplier Contracts”);
(iii) each Company Contract with any Related Party (other than or bid either (A) offer letters for employment on an at-will basisanticipated to result in any loss to any Company upon completion or performance thereof, or (B) customary confidentiality, assignment that is at prices materially above or below the usual prices of inventions and/or noncompetition any Company for the same or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)products or services;
(iv) each Contract evidencing Company IndebtednessLease, including any loan rental or credit occupancy agreement, security license, installment and conditional sale agreement, guarantyand other Company Contract affecting the ownership of, indentureleasing of, mortgagetitle to, pledgeuse of, conditional sale or title retention agreementany leasehold or other interest in, equipment obligation or lease purchase agreementany Company Real Property;
(v) each Real Property LeaseMaterial Customer Contract and Material Supplier Contract containing covenants that purport to restrict the business activity of any Company or limit the freedom of any Company to engage in any line of business or to compete with any Person;
(vi) each Contract with any Card Association partnership, joint venture or NACHA and/or each Contract with strategic alliance agreement between the Companies and a member of third party, whether or not a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHAseparate legal entity is created thereby;
(vii) each material license Company Contract with an Employee, independent contractor or other material Contract pursuant to which the consultant of any Company or any that has aggregate payments in excess of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per yearannually and each Contract for severance, (B) non-exclusive licenses granted to Merchants deferred compensation or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessEmployee Benefit Plans, excluding Contracts with healthcare providers;
(viii) each Contract for the (A) disposition (whether by mergercollective bargaining agreement or union agreement, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014with respect to Employees;
(ix) each Company Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Personwhich is a small business set aside;
(x) each Contract in which the Company bonus, profit sharing, retirement or other form of deferred compensation plan of any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partyCompany;
(xi) each Contract concerning the establishment or operation of a partnershipequity purchase, joint venture, profit sharing option or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business)plan;
(xii) each Contract that is an exchange traded, over pertaining to any Company Rights (other than off the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicesshelf software);
(xiii) each Company Contract entered into relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the Properties of any Company, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with a material settlement under which any Acquired Company has material outstanding obligations; orthe acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(xiv) will be required each Company Contract relating to be filed with the Registration Statement under applicable SEC requirements lease or would similar arrangement of any machinery, equipment, motor vehicles, furniture, fixture or similar property of an amount or value in excess of $50,000;
(xv) each Company Contract to which any Governmental Entity is a party;
(xvi) each Company Contract containing a power of attorney or relating to any obligations or Liabilities as guarantor, surety, co-xxxxxx, endorser, co-maker, indemnitor or otherwise be required in respect of the obligation of any other Person, except in the Ordinary Course of Business;
(xvii) each Company Contract relating to be filed by the sale or other disposition of any Property or other rights of any Company, other than in the Ordinary Course of Business;
(xviii) each Company as an exhibit for a Form S-1 Contract pursuant to Items 601(b)(1)which any Company is or may be obligated to make payments, contingent or otherwise, on account of or arising out of prior acquisitions or sales of businesses, assets or stock of other Persons;
(2)xix) each Company Contract of surety or indemnification, direct or indirect, by any Company, except in the Ordinary Course of Business;
(4)xx) each Company Contract that provides for contingent payments or earn-outs;
(xxi) each Material Customer Contract and Material Supplier Contract that provides for termination, acceleration or other similar rights with respect to any direct or indirect change of control of any Company;
(9xxii) each Company Contract with a Related Person;
(xxiii) each Company Contract that involves any outstanding loan or advance in excess of $25,000 to any Person; and
(10xxiv) each other Company Contract not made in the Ordinary Course of Regulation S-K under the Securities Act as if the Company was the registrantBusiness.
(b) Except as has The Companies are not had in breach or default in any material respect, and to the knowledge of Seller Parties, there is no basis for any valid claim of breach or default in any material respect under any Company Contract, and there exists no event or condition which (whether with or without notice, lapse of time, or both) would not be reasonably likely constitute a default thereunder, give rise to havea right to accelerate, individually modify or in terminate any provision thereof or give rise to any Encumbrance on any Company’s Properties or a right to any additional payments; and to the aggregateknowledge of the Seller Parties, a Material Adverse Effect: (i) each Material no other party to any such Company Contract is in breach or default thereof in any material respect.
(c) Each Company Contract referred to in Schedule 3.13 of the Disclosure Letter is valid and in full force and effect and is constitutes a legal, valid, valid and binding and enforceable obligation of the Company or its applicable Subsidiary Companies party thereto and, to the knowledge of the CompanySeller Parties, the other parties thereto. Assuming receipt of the Required Consents, each other party thereto (subject such Company Contract is enforceable in each case accordance with its terms, and will continue to be valid and in full force and effect after the Enforcement Exceptions); (ii) neither the CompanyClosing Date except as such enforceability may be limited by bankruptcy, any of its Subsidiaries norinsolvency, to the knowledge of the Companyreorganization, any other party to any Material Contractmoratorium or similar Laws affecting creditors’ rights generally, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractby general equitable principles.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cross Country Healthcare Inc)
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be Except as set forth in Section 3.14(a) of the Company Disclosure Schedule collectively4.13, the “Material Contracts”):
Texas Mortgage is not a party to any: (i) each Contract with contract for the employment of any officer, employee, or other person on a Top Merchant full-time or Top Vendor;
consulting basis or relative to severance pay or change-in-control benefits for any such person; (ii) agreement or indenture relating to the borrowing of money in excess of $25,000 or to mortgaging, pledging or otherwise placing a lien on any assets of Texas Mortgage which has a fair market value in excess of $25,000 in the aggregate; (iii) guaranty of any obligation for borrowed money or otherwise, other than merchant agreements endorsements made for collection, or any indemnity agreement; (iv) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal; (v) contract or group of related contracts with the same party for the purchase or sale of products, services, mortgages or deeds of trust under which the undelivered balance of such 16 items has a purchase price in excess of $25,000; (vi) any other contract or group of related contracts with the same party continuing over a period of more than six (6) months from the date or dates thereof or involving more than $25,000; or (vii) other agreement material to Texas Mortgage's business not entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;.
(iiib) Texas Mortgage has attached to the Schedule 4.13 or otherwise furnished to Monterey a true and correct copy of each Contract written contract or commitment, and a written description of each oral contract or commitment, referred to in this Section 4.13, together with any Related Party (other than (A) offer letters for employment on an at-will basisall amendments, (B) customary confidentiality, assignment of inventions and/or noncompetition waivers or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);changes thereto.
(ivc) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
Except as specifically disclosed in Schedule 4.13: (vi) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling since the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers date of the Company March 1997 Balance Sheet, no significant customer or any supplier has indicated that it will stop or decrease the rate of its Subsidiaries business done with Texas Mortgage, except for changes in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions)Texas Mortgage's Business; (ii) neither Texas Mortgage has performed all material obligations required to be performed by it in connection with the Company, contracts or commitments described herein and Texas Mortgage has not been advised of or received any claim of its Subsidiaries nor, default under any such contract or commitment; (iii) Texas Mortgage has no present expectation or intention of not fully performing any obligation pursuant to the knowledge any contract or commitment; and (iv) Texas Mortgage has no Knowledge of the Company, any breach or anticipated breach by any other party to any Material Contract, is in material violation, material breach contract or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractcommitment.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):SCHEDULE 3.14 attached hereto lists:
(i) each Contract with a Top Merchant all Contracts that require the expenditure of or Top Vendorhave an aggregate future liability in excess of, or involve the receipt of, more than One Hundred Fifty Thousand Dollars ($150,000) in any consecutive twelve month period after the date hereof by any Company, other than those terminable by such Company on not more than sixty (60) days notice without penalty or payment;
(ii) all Contracts under which (A) any Company has borrowed any money from, or issued any note, bond, debenture or other evidence of Indebtedness (as hereinafter defined) to, any person (other than merchant agreements entered into a Company) and all other notes, bonds, debentures and other evidences of Indebtedness of any Company (other than in the ordinary course favor of businessa Company) and (B) any person (other than a Company) has directly or indirectly guaranteed Indebtedness, each Contract that involved the expenditure liabilities or receipt by the obligations of a Company and its Subsidiaries or a Company has directly or indirectly guaranteed Indebtedness, liabilities or obligations of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018any person;
(iii) each Contract all material licensing agreements with third parties to which any Related Party Company is a party and all material license, sublicense, option and other agreements relating in whole or in part to the Intellectual Property (including any material license and other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment agreements under which a Company is licensee or licensor of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangementsany Intellectual Property);
(iv) each Contract evidencing all real property leases and subleases to which any Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreementis a party;
(v) each Real Property Leaseemployment agreement that a Company is party to or bound by that has an aggregate future liability in excess of $150,000;
(vi) each Contract collective bargaining agreement and other contract with any Card Association labor organization, union or NACHA and/or each Contract with association that a member of a Card Association enabling the Company’s Company is party to or any of its Subsidiaries’ participation in such Card Association or NACHAbound by;
(vii) each material license covenant not to compete or other material Contract pursuant to which contractual restriction prohibiting the Company or distribution of products in any jurisdiction (other than those arising out of its Subsidiaries grants or receives rights in or to use any material the limitation of the scope of a license of Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms that a Company is party to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessbound by;
(viii) each Contract for the (other than this Agreement) that a Company is party to or bound by with (A) disposition Seller or any affiliate of Seller (whether by merger, consolidation, sale of equity other than a Company) or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition any current or former officer, director or employee of any significant portion of the assets or business a Company, Seller or any Equity Interests (whether by merger, consolidation, purchase affiliate of equity or assets or otherwise) of any other Person Seller (other than in the ordinary course of businessemployment agreements covered by clause (v) above), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract thatunder which a Company has, by its termsdirectly or indirectly, prohibits the Company made any advance, loan, extension of credit or any of its Subsidiaries from (A) entering into any line of businesscapital contribution to, or from freely providing services or supplying products to other investment in, any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise person (other than referral agreements a Company and reseller agreements other than extensions of trade credit in the ordinary course of business);
(x) each Contract granting a Lien upon any Company Property (as defined in Section 3.22) or any other asset (other than Liens relating to leased equipment);
(xi) each Contract providing for indemnification of any person with respect to material liabilities (other than pursuant to license agreements, leases and other agreements entered into in the ordinary course of business) and each Contract regarding the sale of any business providing for indemnification of any person;
(xii) each Contract power of attorney (other than a power of attorney given in the ordinary course of business with respect to routine tax matters or the registration of trademarks) that a Company is an exchange traded, over the counter party to or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicesbound by;
(xiii) each confidentiality agreement that a Company is party to or bound by;
(xiv) each Contract for the sale of any asset of a Company (other than inventory sales in the ordinary course of business) or the grant of any preferential rights to purchase any such asset or requiring the consent of any party to the transfer thereof, other than any such Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; orthe ordinary course of business after the date of this Agreement and not in violation of this Agreement;
(xivxv) will be required each currency exchange, interest rate exchange, commodity exchange or similar Contract that a Company is party to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required bound by; and
(xvi) each Contract for any joint venture or partnership that a Company is party to be filed or bound by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1(collectively, "Material Contracts"), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as None of the Companies has not had obtained any letter of credit that is outstanding or will be in effect on the Closing Date to any person, firm or corporation for any purpose whatsoever.
(c) None of the Companies is (with or without the lapse of time or the giving of notice, or both) in breach or default, nor to Seller's knowledge is there any basis for any claim of default, nor to Seller's knowledge is any other party to any Material Contract (with or without the lapse of time or the giving of notice, or both) in breach or default, under any of the Material Contracts, except for such breaches and would not be reasonably likely to havedefaults that, individually or in the aggregate, would not have a Material Adverse Effect: (i) each . To the knowledge of Seller, all the Material Contract is Contracts are in full force and effect and are valid and binding and are enforceable by the Company that is a legal, valid, binding and enforceable obligation party thereto in accordance with their terms.
(d) As of the Company or its applicable Subsidiary anddate hereof, to none of Seller and the knowledge Companies has, except as set forth on SCHEDULE 3.14, received any notice of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, intention of any of its Subsidiaries nor, to the knowledge of the Company, any other party to terminate any Material Contract, is in material violation, material breach . Seller has delivered or material default under, any Material Contract, and, made available to Purchaser prior to the knowledge execution of this Agreement true and correct copies of all the CompanyMaterial Contracts, there exists no condition or event whichtogether with all modifications and amendments thereto, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) in effect as of the date hereof.
(e) For purposes of this Agreement, neither "Indebtedness" shall mean (i) all obligations for borrowed money or for the Company nor its Subsidiaries have waived deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices) or with respect to deposits or advances of any material rights kind (other than pursuant to license agreements, leases and other agreements entered into in the ordinary course of business), (ii) any other obligation that is evidenced by a note, bond, debenture or similar instrument or on which interest charges are customarily paid, (iii) all obligations under financing leases, (iv) all obligations in respect of acceptances issued or created, (v) all liabilities secured by any Material ContractLien on any property other than Permitted Liens and (vi) all guarantee obligations.
Appears in 1 contract
Samples: Redemption, Stock Purchase and Recapitalization Agreement (World Almanac Education Group Inc)
Contracts and Commitments. Except as (i) expressly referred to in the notes to the Broadband Financial Statements or the Broadband Interim Financial Statements or (ii) contained in SECTION 5.16 of the Broadband Due Diligence Schedules:
(a) Section 3.14(a) Broadband is not party to or bound by any Contract which is related to its business, operations, financial condition or prospects or which involves, or is reasonably likely to involve, the expenditure or receipt by Broadband after the Broadband Interim Balance Sheet Date of more than Fifty Thousand Dollars ($50,000). The legal enforceability after the Closing by Broadband of its Contracts will not be affected in any material respect by the execution and delivery of this Agreement and the consummation of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of its Subsidiaries transactions contemplated hereby.
(b) Broadband is not a party to or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
by (i) each any Contract with stockholders or former stockholders, or any Person known to Broadband to be an Affiliate or Associate of a Top Merchant stockholder or Top Vendor;
former stockholder; (ii) any Contract with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers that are not cancelable by Broadband at will without liability, penalty or premium; (iii) any Contract providing for the payment of any bonus or commission based on sales or earnings; (iv) any Contract that contains any severance or termination or change in control pay liability or obligation; (v) any Contract for the purchase or sale of any security; (vi) any Contract for the borrowing of money (or guarantee of indebtedness); (vii) any Contract for leasing personal property which requires annual payments in excess of Twenty-Five Thousand Dollars ($25,000) or the term of any of which exceeds three (3) years; (viii) any Contract relating to express product or service warranties by Broadband; (ix) any Contract containing a covenant not to compete by Broadband; (x) any Contract granting a Lien (other than merchant agreements entered into in a Broadband Permitted Ownership Lien or Broadband Permitted Real Estate Lien), security interest or other material encumbrance on any property or asset of Broadband; (xi) any Contract providing for exclusive purchases by or from Broadband or containing a requirement purchase obligation; (xii) any Contract providing for administration, service, utilization review, adjustment, claims management or similar function relating to insurance or litigation of Broadband; or (xii) any Contract for the sale of any of the assets, property or rights of Broadband outside of the ordinary course of business, each Contract that involved the expenditure or receipt except as contemplated by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantthis Agreement.
(bc) Except as Broadband has not had given any power of attorney (whether revocable or irrevocable) to any Person that is or may hereafter be in force for any purpose whatsoever.
(d) Each Contract of Broadband is valid and would not be reasonably likely binding upon Broadband and, to haveBroadband's knowledge, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract other party thereto and is in full force and effect and enforceable by Broadband in accordance with its terms except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or similar Laws of general application relating to or affecting creditors' rights, including the effect of statutory or other Laws regarding fraudulent conveyances and preferential transfers, and (ii) for the limitations imposed by general principles of equity or public policy considerations, including as to enforcement of indemnification provisions. Broadband has performed all material obligations required to be performed by it to date under each Contract to which Broadband is a legalparty, valid, binding and enforceable obligation of the Company there has been no breach or its applicable Subsidiary anddefault or, to the knowledge Broadband's knowledge, a claim of the Company, each default by Broadband or by any other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, under any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists provision thereof and no condition or event has occurred which, after with or without notice, lapse the passage of time or both, would constitute a default by Broadband or, to Broadband's knowledge, any such violationother party thereto under any provision thereof or which would permit modification, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default acceleration or termination under of any Material Contract; Contract by any other party thereto or by Broadband.
(e) True, complete and (iv) as correct copies of each of the Contracts expressly referred to in the notes to Broadband's financial statements, other than the Contracts that have been filed with the Broadband SEC Reports prior to the date hereofof this Agreement, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractheretofore been provided to Las Americas by Broadband.
Appears in 1 contract
Samples: Merger Agreement (Usa Broadband Inc)
Contracts and Commitments. (a) Section 3.14(a) of the Company The NAI Disclosure Schedule sets forth a correct and complete list of the following Contracts lists all contracts to which the Company or any of its Subsidiaries NAI Contributed Entity is a party or otherwise by which it or the NAI Contributed Businesses or their respective assets are bound (the Contracts required that are to be set forth performed in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, whole or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which part after the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements date hereof and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will would be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by Securities and Exchange Commission (the Company "Commission") as an exhibit for a Form S-1 "material contracts" pursuant to Items 601(b)(1), (2), (4), (9) or (10) Item 601 of Regulation S-K under the Securities Act of 1933, as amended (the "Securities Act") if such NAI Contributed Entity was a registrant registered under Section 12(g) of the Company was Exchange Act of 1934, as amended (the registrant.
"Exchange Act"). The NAI Disclosure Schedule also lists (ba) Except as has not had and would not be reasonably likely to haveall agreements, individually bonds, notes, debentures or in the aggregate, a Material Adverse Effect: similar instruments evidencing (i) each Material Contract is indebtedness of any NAI Contributed Entity for borrowed money or for the deferred purchase price of any material property or service (other than trade accounts arising in full force and effect and is a legalthe ordinary course of business), valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Companyobligations of any NAI Contributed Entity under capital leases, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor guaranties by any NAI Contributed Entity of its Subsidiaries has received written notice liabilities or obligations of default or termination under any Material Contract; others, and (iv) any Liens on the assets of any NAI Contributed Entity, (b) agreements that limit the right of any NAI Contributed Entity to compete in any line of business; (c) agreements which, after giving effect to the transactions contemplated hereby, purport to restrict or bind NAI or any of its subsidiaries, other than the NAI Contributed Entities; (d) all agreements not in the ordinary course of business pursuant to which there is any continuing liability or obligation, including without limitation any indemnification obligation; (e) merger, acquisition and similar agreements that have any surviving obligations not performed in full, including without limitation, any indemnity obligation; (f) agreements with any affiliate of such NAI Contributed Entity; (g) any agreements not terminable on less than 75 days notice without penalty and involving amounts in excess of $6,000,000 during the 1997 fiscal year, reasonably expected during 1998, or as projected over the remainder of the date hereofstated fixed term of the applicable agreement; and (h) any collective bargaining or similar agreements. True and complete copies of all agreements listed in the NAI Disclosure Schedule have been made available to UVSG. Each of the NAI Contributed Entities has fulfilled in all material respects, neither or taken all actions necessary to enable it to fulfill in all material respects when due, its obligations under each of such agreements to which it is a party. To the Company nor its Subsidiaries knowledge of NAI, all parties thereto other than the NAI Contributed Entities have waived complied in all material respects with the provisions thereof and no party is in breach or violation of, or in default (with or without notice or lapse of time, or both) under such agreements which breach, violation or default is reasonably likely to have a Publications Material Adverse Effect. No NAI Contributed Entity has received any material rights under notice of termination, cancellation or acceleration of any Material Contractsuch agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tele Communications Inc /Co/)
Contracts and Commitments. (a) Except as set forth on Section 3.14(a3.10(a) of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts Letter, no Target Company is party to which the Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):any:
(i) each Contract with a Top Merchant or Top VendorCBA;
(ii) other than merchant agreements entered into in Contract, agreement or indenture relating to any Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any portion of their properties or assets (A) pursuant to which, any Target Company has incurred or may incur Indebtedness exceeding $250,000 for which any of any Target Company will be liable following the ordinary course Closing, or (B) relating to any Liens on assets of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018any Target Company;
(iii) each Contract with guaranty of any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition Indebtedness or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)material guaranty;
(iv) each Contract evidencing Company IndebtednessContract, including lease or agreement under which it is lessee of, or holds, uses or operates any loan real or credit agreementpersonal property or assets owned by any other party, security agreement, guaranty, indenture, mortgage, pledge, conditional sale for which the annual rental or title retention agreement, equipment obligation or lease purchase agreementpayment commitment exceeds $250,000;
(v) each Real Property LeaseContracts or group of related Contracts with any Top Customer, with any Top Distributor or any Top Supplier;
(vi) each Contract with any Card Association Contracts or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms relating to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants acquisition or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidationsale of equity, sale of equity or assets or otherwise) of any significant portion Person or business or the equity or substantially all of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of Person by any Target Company since the assets Look-back Date or business the future acquisition or any Equity Interests disposition (whether by merger, consolidationsale of equity, purchase sale of equity or assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Target Company or, pursuant to which any Target Company have any continuing “earn out” or other Person contingent payment obligations or any surviving material indemnification obligations;
(vii) joint venture, partnership, limited liability company or similar agreement with any third party (including any agreement providing for joint development or marketing);
(A) Contract pursuant to which any Target Company licenses, or is otherwise permitted by a third party to practice, use or register, or receive any other rights under, any material Intellectual Property Rights (other than “shrink wrap licenses,” “click through” licenses and licenses to off-the-shelf Software on standard commercial terms with fees of less than $250,000 per year), (B) Contract pursuant to which a third party licenses, or is permitted to use or register, or granted any other rights under, any Company-Owned IP Rights (other than non-exclusive licenses granted by a Target Company to customers in the ordinary course Ordinary Course of businessBusiness), or (C) acquisition of Equity Interests of Contract affecting any Acquired Company (other than by the Company Target Company’s ability to use, enforce, or its Subsidiariesdisclose any material Intellectual Property Rights, and excluding Company Profits Units granted in the ordinary course)such as covenant-not-to-sxx, in each casecoexistence, entered into since January 1consent-to-use, 2014concurrent use, or settlement agreements;
(ix) each distribution, sales representative, marketing or similar Contract that, by its terms, prohibits or agreement that required any Target Company to make commission payments under such agreement in excess of $250,000 during the Company or any of its Subsidiaries from twelve (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person12)-month period ended on the Balance Sheet Date;
(x) each Contract or agreement pursuant to which any Target Company would be required to make, in which the Company or any aggregate, capital expenditures in excess of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party$250,000;
(xi) each Contract concerning or agreement that (a) materially limits the establishment ability of any Target Company to compete in any line of business or operation with any product or with any Person or in any geographic area or market or during any period of a partnership, joint venture, profit sharing time or similar enterprise (b) contains covenants that restrict the business activity of any Target Company in any material respect (other than referral non-disclosure agreements and reseller agreements entered into in the ordinary course Ordinary Course of businessBusiness);
(xii) Contract or agreement that contains “most-favored-nation” obligations or restrictions, or rights of first refusal or offer or any similar requirement or right, in each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on case binding any commodity, security, instrument, asset, rate or index Target Company in favor of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicesthird party;
(xiii) each Contract entered into or agreement where any Target Company is subject to a requirement of exclusive dealing or any similar exclusivity obligation;
(xiv) any interest, currency or hedging derivatives or similar Contracts;
(xv) Contract or agreement that limits the incurrence of Indebtedness or the declaration or payment of any dividends or other distributions;
(xvi) Contract or agreement that involves payment to or by any Target Company in connection with excess of $250,000 annually;
(xvii) Contract or agreement whose termination (other than those termination by passage of time) would reasonably be expected to have a material settlement under Company Material Adverse Effect;
(xviii) employment, severance or consulting Contract that is not terminable at will by any Target Company and which will require the payment of amounts by any Acquired Target Company has material outstanding obligationsafter the date hereof in excess of $250,000 in total compensation annually; or
(xivxix) will be required Contract or agreement that relates to be filed the settlement of any Proceeding (A) with any Governmental Authority since the Registration Statement under applicable SEC requirements Look-back Date; (B) that materially restricts or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) imposes obligations upon any Target Company; or (10C) requires payment by an Target Company of Regulation S-K under more than $500,000 after the Securities Act as if the Company was the registrantdate hereof.
(b) Except as has not had and would not be reasonably likely to have, individually or Each Contract described in the aggregate, a Material Adverse Effect: clauses (i) each through (xix)of Section 3.10(a) is a “Material Contract”. Purchaser either has been supplied with, or has been given access to, a true and correct copy of all Material Contracts, together with all supplements, amendments, waivers or other changes thereto.
(c) Neither any Target Company nor, to the Company’s Knowledge, any other party thereto is in breach of, violation of or default under any Material Contract, except as would not reasonably be expected to be material to the Target Companies, taken as a whole. No event has occurred that with notice or lapse of time or both would constitute a breach of, violation of or default under, any Material Contract is by any Target Company, or, to the Company’s Knowledge, any counterparty, except as would not reasonably be expected to be material to the Target Companies, taken as a whole. All Material Contracts are valid and in full force and effect and is a constitute legal, valid, valid and binding and enforceable obligation obligations of the applicable Target Company or its applicable Subsidiary and, to the knowledge of the Company’s Knowledge, each other party thereto (subject in each case to counterparty, and are enforceable against the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, applicable Target Company and, to the knowledge Company’s Knowledge, the counterparty thereto in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the Company, there exists no condition or event which, after notice, lapse availability of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; specific performance and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractother equitable remedies.
Appears in 1 contract
Samples: Business Combination Agreement (Magnum Opus Acquisition LTD)
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule SCHEDULE 3.12 sets forth a correct complete and complete accurate list of all Contracts in the following Contracts categories to which the Company or any of its Subsidiaries the Xxxxx Entities is a party or otherwise by which any of the Xxxxx Entities is bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”"MATERIAL CONTRACTS"):
(ia) each Contract with a Top Merchant Contracts for the furnishing of services by any of the Xxxxx Entities relating to current or Top Vendor;
(ii) other than merchant agreements entered into in anticipated annual revenues to any of the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries Xxxxx Entities of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 20181,000,000;
(iiib) each Contract with partnership or joint venture Contracts with, or any Related Party other investment in (other than (A) offer letters for employment on whether through the acquisition of an at-will basisequity interest, (B) customary confidentiality, assignment the making of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any a loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets advance or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(xc) each Contract in Contracts (i) under which any of the Company Xxxxx Entities has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money, (ii) constituting capitalized lease obligations, (iii) under which any of the Xxxxx Entities has granted (or may grant) a security interest or lien on any of its Subsidiaries respective properties or assets (other than a Permitted Encumbrance), or (iv) under which any of the Xxxxx Entities has granted “most favored nation” pricing provisions incurred any obligations for any performance bonds, payment bonds, bid bonds, surety bonds, letters of credit, guarantees or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partysimilar instruments;
(xid) each Contract concerning material license, option or other Contracts relating to the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise Intellectual Property (other than referral agreements and reseller agreements in the ordinary course of businesscomputer software subject to shrink wrap licenses);
(xiie) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on Contracts with any commodity, security, instrument, asset, rate or index Affiliate of any kind of the Xxxxx Entities or nature whatsoeverwith any current or former officer, whether tangible director or intangible, including currencies, interest rates, foreign currency and indicesemployee of any of the Xxxxx Entities;
(xiiif) each Contract entered into Contracts which require payment in connection with a excess of $1,000,000 per year for the purchase of inventory, materials, supplies or equipment, except for open purchase orders that are cancelable without material settlement under which any Acquired Company has material outstanding obligations; orpenalty, cost or other liability on not more than thirty (30) days notice;
(xivg) will be required to be filed with distribution, franchise, license, sales, commission, consulting, advertising or marketing Contracts; and
(h) Contracts (other than the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1Ancillary Agreements), (2), (4), (9) containing covenants restraining or (10) limiting the freedom of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation any of the Company Xxxxx Entities or its applicable Subsidiary andany officer, director, shareholder or Affiliate thereof to engage in any line of business or to compete with any Person including by restraining or limiting the knowledge right to solicit customers. Sellers have made available to Buyer a true, correct and complete copy of the Company, each other party thereto (subject written Contract listed in SCHEDULE 3.12 and a complete written description of each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is oral Contract listed in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material ContractSCHEDULE 3.12.
Appears in 1 contract
Samples: Stock Purchase Agreement (Viad Corp)
Contracts and Commitments. (a) Section 3.14(a) i. All of the contracts of the Company Disclosure Schedule sets and its Subsidiaries that are required to be described in the documents described under paragraph 5V hereof (the "SEC Documents") or to be filed as exhibits thereto are described in the ------------- SEC Documents or filed as exhibits thereto, and (except as set forth a correct on the attached "Contracts Schedule") all such contracts required to be filed as ------------------ exhibits thereto are valid, binding and enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, similar laws affecting creditors' rights generally or general principles of equity. True and complete list copies of the following Contracts all such contracts have been made available to which Purchaser. Neither the Company or nor any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) breach of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in default under any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures such contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, is any other party to any Material Contract, is in material violation, material breach of or material in default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute under any such violation, breach contract.
ii. Except as expressly contemplated by this Agreement or default; (iii) as set forth on the attached "Contracts Schedule" or the attached "Employee Benefits ------------------ ----------------- Schedule," neither the Company nor any Subsidiary is a party to or bound by, nor -------- are any assets, properties or operations of the Company or any of its Subsidiaries bound by, any written or oral:
(1) employment, non-competition, consulting or severance agreement;
(2) lease of real property;
(3) lease of personal property with an annual base rental obligation of more than $100,000 or a total remaining rental obligation of more than $250,000;
(4) joint venture or partnership agreement;
(5) agreement with a term of more than six months which is not terminable by the Company or any Subsidiary upon less than 30 days' notice without penalty or damages, and which involves an obligation of the Company of more than $100,000;
(6) agreement containing covenants limiting the ability of the Company or any of its Subsidiaries to compete in any line of business with any Person in any area or territory;
(7) contract involving any commitment of suretyship, guaranty or indemnification by the Company;
(8) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrange ments;
(9) contract under which the Company or Subsidiary has received written notice advanced or loaned, or made any Investment in, any other Person (other than a Wholly Owned Subsidiary) of amounts in the aggregate exceeding;
(10) agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights); or
(11) agreement related to hazardous waste disposal, solid waste disposal, wastewater management, investigation of environmental matters, environmental remediation, employment of environmental consultants, or any other environmental obligation, liability or agreement.
iii. Except as would not (either individually or in the aggregate) have a Material Adverse Effect: all of the contracts, agreements and instruments set forth on the Contracts Schedule are valid, binding and ------------------ enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, similar laws affecting creditors' rights generally or general principles of equity; the Company and each Subsidiary have performed all obligations required to be performed by them under the contracts, agreements and instruments required to be listed on the Contracts Schedule and are not in default under or in breach of ------------------ nor in receipt of any claim of default or termination breach under any Material Contractcontract, agreement or instrument required to be listed on the Contracts Schedule; and (iv) as no event has ------------------ occurred which with the passage of time or the date hereofgiving of notice or both would result in a default, breach or event of noncompliance by the Company or any Subsidiary under any contract, agreement or instrument required to be listed on the Contracts Schedule; neither the Company nor its Subsidiaries have waived any material rights under Subsidiary has any Material Contractpresent ------------------ expectation or intention of not fully performing all such obligations; neither the Company nor any Subsidiary has knowledge of any breach or anticipated breach by the other parties to any contract, agreement, instrument or commitment required to be listed on the Contracts Schedule; and neither the Company nor any Subsidiary is a party to any ------------------ contract requiring it to purchase or sell goods or services or lease property above or below (as the case may be) prevailing market prices and rates.
iv. The Purchasers' special counsel has been given the opportunity to review a true and correct copy of each of the written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to on the Contracts --------- Schedule, together with all amendments, waivers or other changes thereto. --------
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Krasovec Frank P)
Contracts and Commitments. (a) Section 3.14(aSchedule 3.19 contains a complete and accurate list of all Contracts (including, without limitation, intercompany contracts) of the Company Disclosure Schedule sets forth a correct and complete list following categories to which any of the following Contracts to which the Company Stock Entities or any of its their Subsidiaries is a party or otherwise by which any of them is bound (the including any Contracts required subject to be set forth in Section 3.14(a) 5.5, as of the Company Disclosure Schedule collectively, the “Material Contracts”):date of this Agreement:
(i) each Contract with a Top Merchant the individual severance agreements referenced in Section 8.2(f)(i) and all employment, personal services, consulting, noncompetition, severance, golden parachute or Top Vendoremployee, officer or director indemnification contracts;
(ii1) all Contracts pertaining to the purchase and sale of natural gas in all its forms and all other hydrocarbons (including liquid products) having a term of more than merchant agreements entered into in twenty-seven days or involving the ordinary course of business, each Contract that involved the expenditure payment or receipt by the Company and its Subsidiaries of more than $500,000 250,000 per month of cash or other value; (2) all Contracts pertaining to the processing, treating, compression, gathering, storage, exchange, transportation or transmission of natural gas in all its forms and all other hydrocarbons (including liquid products) involving the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure payment or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-100,000 per month period ending December 31, 2018of cash or other value;
(iii) each Contract with any Related Party all Contracts, Leases, or Permits (other than Environmental Permits) involving yearly rental payments or receipts in excess of $250,000 including without limitation all fee properties, leases, easements and rights of way associated with the Equipment Lease-Undivided Interest dated as of November 26, 1991, between The First National Bank of Chicago, as Trustee, and Enron Gas Processing Company and the Site Lease and Easement Agreement dated as of that date between such parties (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangementsthe "Bushton Lease");
(iv) each Contract evidencing Company IndebtednessPromissory notes, including any loan loans, agreements, indentures, evidences of indebtedness or credit agreementother instruments providing for the lending of money, whether as borrower, lender or guarantor, in excess of $250,000 and all related security agreement, guaranty, indenture, mortgage, pledge, conditional sale agreements or title retention agreement, equipment obligation or lease purchase agreementsimilar agreements associated therewith;
(v) each Real Property LeaseContracts containing covenants limiting the freedom of the Stock Entities and their Subsidiaries to engage in any line of business or compete with any person or operate at any location, including, without limitation, any preferential rights granted to third parties;
(vi) each Any Contract with any Card Association pending for the acquisition or NACHA and/or each Contract disposition, directly or indirectly (by merger or otherwise) of assets with a member value in excess of a Card Association enabling $25,000 (other than inventory) or capital stock of the Company’s or any of its Stock Entities and their Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which Contracts between the Company Stock Entities and their Subsidiaries, on one hand, and the Sellers or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers affiliate of the Company or any of its Subsidiaries in Sellers on the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessother hand;
(viii) each Contract for All Contracts pertaining to the (A) disposition (whether by mergerownership, consolidationoperation, sale of equity or assets or otherwise) maintenance of any significant portion and all facilities of the assets or business Stock Entities and their Subsidiaries having a term greater than 90 days and having a value in excess of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014$250,000;
(ix) each Contract thatAny other agreement of the Stock Entities and their Subsidiaries which requires annual payments to be made or received in excess of $250,000 or are not cancelable with ninety (90) days' notice, by its terms, prohibits including the Company or any of its Subsidiaries from Bushton Guaranties (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;as hereinafter defined); and
(x) each Contract in which the Company or any A listing of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract all Contracts entered into in connection between the Stock Entities and Subsidiaries with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with either the Registration Statement under applicable SEC requirements Sellers or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1)their affiliates since December 1, (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant1999 that are not cancelable upon 30 days notice.
(b) True copies of the written Contracts, and accurate written summaries of the oral Contracts, identified in Schedule 3.19 have been made available to the Buyer. Except as has not had and would not be reasonably likely to haveset forth in Schedule 3.19, individually or in neither the aggregate, a Material Adverse Effect: (i) each Material Contract Stock Entities nor the Subsidiaries is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the CompanySellers, each no other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge or in breach or violation of the Company, there exists (and no condition or event has occurred which, after notice, with notice or the lapse of time or both, would constitute any such violationa default under, or a breach or defaultviolation of) any term, condition or provision of any Contract identified on Schedule 3.19 except for defaults, breaches, violations or events which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Other than Contracts which have terminated or expired in accordance with their terms, each of the Contracts identified on Schedule 3.19 constitutes valid, binding and enforceable obligations of the Stock Entities, the Subsidiaries or Sellers and Sellers' affiliates to the extent they are parties thereto and, to the knowledge of Sellers, enforceable obligations of any other party thereto, in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered on a proceeding in equity or at law) and an implied covenant of good faith and fair dealing) and is in full force and effect. No event has occurred which either entitles, or would, upon notice or lapse of time or both, entitle the holder of any indebtedness for borrowed money affecting the Stock Entities and their Subsidiaries to accelerate, or which does accelerate, the maturity of any indebtedness affecting the Stock Entities and their Subsidiaries. Except as set forth in Schedule 3.19, (1) none of Sellers, Sellers' affiliates, the Stock Entities or their Subsidiaries have received any prepayment, advance payment, deposits or similar payments, and have no refund obligation, with respect to any gas or products purchased, sold, gathered, stored or processed by or on behalf of the Stock Entities and their Subsidiaries; (iii2) neither none of Sellers, Sellers' affiliates, the Company nor Stock Entities or their Subsidiaries have received any compensation for gathering, storage or processing services which would be subject to any refund or create any repayment obligation either by or to the Stock Entities and their Subsidiaries, and to the knowledge of its Subsidiaries has received written notice of default or termination under any Material ContractSellers, there is no basis for a claim that a refund is due; and (iv3) with regard to gas gathering, processing, storage and sales Contracts in effect as of the date hereofClosing Date, neither the Company nor its Stock Entities and their Subsidiaries have waived any material rights under any Material Contractwill be entitled to receive the full contract price in accordance with the terms of each such contract for all gas and products gathered, processed and/or sold on and after the Closing Date.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Kinder Morgan Inc)
Contracts and Commitments. (a) Section 3.14(a3.11(a) of the Company Disclosure Schedule sets forth a correct and complete list lists, as of the date hereof, all of the following Contracts to which the any Acquired Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):party:
(i) each any Contract with a Top Merchant or Top Vendorof any Acquired Company involving aggregate consideration in excess of One Hundred Thousand Dollars ($100,000) per annum;
(ii) any partnership agreement or joint venture Contract pursuant to which an Acquired Company has an obligation to make an investment in or loan to any Person or that involves a sharing of revenues, profits, losses, costs or liabilities by an Acquired Company with any Person (other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018Company);
(iii) each any Contract with any Related Party the top twenty (other than 20) customers of the Acquired Companies by revenue received during the period beginning on January 1, 2018 and ending on May 31, 2018 (A) offer letters for employment on an at-will basiseach, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangementsa “Material Client”);
(iv) any Contract with the top ten (10) suppliers and service providers of the Acquired Companies based on payments made during the period beginning on June 1, 2017 and ending on May 31, 2018, in each Contract evidencing Company Indebtednesscase that is material to the Acquired Company’s business and operations (each, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreementa “Material Supplier”);
(v) each Real Property Leaseall Contracts that require any Acquired Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(vi) each Contract with all Contracts that provide for (1) the indemnification by any Card Association Acquired Company of any Person (other than Standard Form Customer Contracts and Non-Negotiated Vendor Contracts) or NACHA and/or each Contract with a member (2) the assumption of a Card Association enabling the Company’s any Tax, environmental or other Liability of any of its Subsidiaries’ participation in such Card Association or NACHAPerson;
(vii) each material license (i) any Contract that includes an obligation by any of the Acquired Companies to indemnify any other Person against any claim of infringement, misappropriation, misuse, dilution or violation of any Intellectual Property Rights or Technology and (ii) any other material Contract pursuant to which the Company of guarantee, support, assumption or endorsement of, or any similar commitment with respect to, the obligations, Liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of its Subsidiaries grants or receives rights in or to use any material Intellectual Propertyother Person, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with licensethan, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course case of business both clauses (i) and (C) referral agreements ii), Standard Form Customer Contracts and reseller agreements in the ordinary course of businessNon-Negotiated Vendor Contracts;
(viii) each Contract all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) providing for fixed compensation in excess of One Hundred Fifty Thousand Dollars ($150,000) per annum to which the Acquired Companies are a party other than such employment agreements or Contracts which are terminable without cost or liability to the Acquired Companies and with no more than sixty (60) days’ notice;
(ix) all collective bargaining agreements or Contracts with any Union to which any Acquired Company is a party;
(x) any Contract, other than Standard Form Customer Contracts and Non-Negotiated Vendor Contracts, that (i) provides for the authorship, invention, creation, conception or other development of any Technology or Intellectual Property Rights (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets Acquired Companies for any other Person or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition for any of the Acquired Companies by any other Person, including, in each of clauses (A) and (B), any joint development by any of the Acquired Companies with any other Person; (ii) provides for the assignment or other transfer of any significant portion ownership interest in Technology or Intellectual Property Rights (A) to any of the assets Acquired Companies from any other Person or business (B) by any of the Acquired Companies to any other Person; (iii) includes any grant of an Intellectual Property License to any other Person by any of the Acquired Companies ; or (iv) includes any Equity Interests (whether grant of an Intellectual Property License to any of the Acquired Companies by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than than, with respect to this subsection (iv) only, licenses for Open Source Software listed in Section 3.12(m) of the ordinary course of businessDisclosure Schedule), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each any non-disclosure Contract or other Contract primarily concerning the establishment disclosure of Proprietary Information by, to, or operation from any of a partnership, joint venture, profit sharing or similar enterprise the Acquired Companies (other than referral agreements and reseller agreements (i) Standard Form Customer Contracts, (ii) Non-Negotiated Vendor Contracts or (iii) Contracts in substantially the ordinary course form of businessthe Acquired Companies’ standard non-disclosure Contract made available to Buyer prior to the date hereof);
(xii) each any Contract that is an exchange tradedunder which any Acquired Company (A) grants any exclusive rights, over noncompetition rights, rights of first refusal, rights of first negotiation or most-favored customer rights, (B) limits or purports to limit the counter ability of the Acquired Companies to compete in any line of business or with any Person or in any geographic area or during any period of time (other than Standard Form Customer Contracts), (C) contains “clawback” or similar undertakings by the Acquired Companies requiring the reimbursement or refund of any fees (other than Standard Form Customer Contracts), (D) contains caps or waivers on or of fees or other swapexpenses, cap(E) contains “key person” covenants, floor, collar, futures contract, forward contract, option undertakings or notice or termination provisions or (F) contains performance-based fee or allocation provisions (other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicesthan Standard Form Customer Contracts);
(xiii) each any Contract that following Closing would or would purport to require Buyer or any of its Affiliates (other than the Acquired Companies) to (i) grant any Intellectual Property License (other than Standard Form Customer Contracts), (ii) assign or transfer to any Person any Company Intellectual Property, or (iii) subject any Company Intellectual Property to any Encumbrance;
(xiv) any Related Party Contracts;
(xv) all franchise, agency, market research, and marketing consulting and advertising Contracts to which the Acquired Companies are a party;
(xvi) any agreement for the sale of any of the assets of an Acquired Company, other than any such sale in the Ordinary Course of Business or the disposition or sale of obsolete assets or assets with de minimis or no book value;
(xvii) any agreement that relates to the acquisition of any business or assets of any other Person (whether by merger, sale of stock, sale of assets or otherwise);
(xviii) any executory agreement relating to the acquisition by an Acquired Company of any operating business or the assets or Equity Interests of any other Person, other than agreements entered into in connection the Ordinary Course of Business for the acquisition of goods and services and confidentiality agreements;
(xix) any Contract with a material settlement under any Governmental Body to which any Acquired Company has material outstanding obligations; oris a party;
(xivxx) will be any Contracts relating to Indebtedness (including guarantees) of the Acquired Companies, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be filed capitalized in accordance with the Registration Statement under applicable SEC requirements GAAP, in each case, where any Acquired Company is a lender or would otherwise be required borrower;
(xxi) any Contract containing provisions requiring future contingent or non-contingent “earnout” or similar payments to be filed made by any Acquired Company;
(xxii) any Contract providing for future payments or the acceleration or vesting of payments that are conditioned, in whole or in part, on a change in control of any Acquired Company; and
(xxiii) any Contract under which an Acquired Company as an exhibit for a Form S-1 pursuant has made advances or loans to Items 601(b)(1)any other Person, (2), (4), (9) or (10) other than advances made to any employee of Regulation S-K under such Acquired Company in the Securities Act as if the Company was the registrantOrdinary Course of Business.
(b) Each of the contracts set forth in Section 3.11(a) of the Disclosure Schedule (the “Material Contracts”) is the legal, valid and binding obligation of the applicable Acquired Company, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought in a proceeding at law or in equity). Except as has not had and would not be reasonably likely to haveexpressly stated in Section 3.11(b) of the Disclosure Schedule, individually or in each of the aggregate, a Material Adverse Effect: (i) each Material Contract Contracts is in full force and effect effect, and the applicable Acquired Company is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary not and, to the knowledge Knowledge of the CompanySeller, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any no other party to any Material Contractsuch agreement is, is in material violationdefault under any such agreement. To the Seller’s Knowledge, material breach no event or material default undercircumstance has occurred that, any Material Contract, and, to the knowledge of the Company, there exists no condition with notice or event which, after notice, lapse of time or both, would be reasonably expected to constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice an event of default or termination under any Material Contract; and (iv) as Contract or result in a termination thereof or would be reasonably expected to cause or permit the acceleration or other adverse changes of any right or obligation or the date hereof, neither the Company nor its Subsidiaries have waived loss of any material rights under any benefit thereunder. Complete and correct copies of each Material ContractContract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Buyer.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a2.13(a) of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) (A) each Contract with a Top Merchant or Customers and (B) each Contract with a Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Current Government Contract;
(iii) each Contract that involved requires the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 25,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 20182020;
(iiiiv) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) any Company Benefit Plans and or Company Benefit Arrangements);
(ivv) each power of attorney;
(vi) each Contract with any employee of the Company (other than any Company Benefit Plans, Company Benefit Arrangements, or any form offer letter or form Contract entered into in the ordinary course of business, a true and correct copy of which has been provided to Buyer), including any Contract under which such employee is advanced or loaned any funds (other than advancements of expenses to employees in the ordinary course of business);
(vii) each Contract with any independent contractor of the Company or any consultant to the Company (other than any Company Benefit Plans, Company Benefit Arrangements, or any form offer letter or form Contract entered into in the ordinary course of business);
(viii) each Contract that is not terminable by the Company without penalty on less than six months’ notice;
(ix) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(vx) each written warranty, guaranty or other similar undertaking with respect to contractual performance (other than contracts entered into in the ordinary course of business a primary purpose of which is not providing a warranty or guaranty);
(xi) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property, including each Real Property Lease;
(vixii) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company uses Company Licensed Intellectual Property (excluding currently-available, off-the-shelf, non-exclusive Software programs);
(xiii) each license or other Contract pursuant to which the Company has licensed or otherwise granted any of its Subsidiaries grants or receives rights in or right to use any material Person with respect to Company Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course Ordinary Course of business and (C) referral agreements and reseller agreements in the ordinary course of businessBusiness;
(viiixiv) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity Assets (other than in the Ordinary Course of Business) or assets or otherwise) of any significant portion for the acquisition of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person pursuant to which the Company has continuing obligation;
(other than in the ordinary course of business)xv) each Contract that contains any customer non-solicitation, non-competition, confidentiality or (C) acquisition of Equity Interests of any Acquired Company (other than by similar obligations binding the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, that otherwise prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(xxvi) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively or on most favored terms from a single party or sell any material product or service exclusively or on most favored terms to a single party;; and
(xixvii) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing venture or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
. The Company has made available to Buyer a true and correct copy of all written contracts (xiior description of any oral contracts) each Contract that is an exchange tradedwhich are referred to on Section 2.13(a) of the Disclosure Schedule, over the counter together with all amendments, schedules, exhibits, annexes, waivers or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantchanges thereto.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each of the other party thereto (subject in each case to parties thereto. Neither the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries Company nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the . The Company nor does not have any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material ContractContract with a Governmental Authority.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Verb Technology Company, Inc.)
Contracts and Commitments. (a) Section 3.14(a3.10(a) of the Company Disclosure Schedule sets forth a correct and complete list III lists all of the following Contracts (each Contract listed or required to be so listed, a “Material Contract ”) to which any member of the Company or any of its Subsidiaries Group is a party or otherwise bound (the Contracts required to be set forth and which are currently in Section 3.14(a) effect as of the Company Disclosure Schedule collectively, the “Material Contracts”):date hereof:
(i) each Contract with a Top Merchant or Top VendorContracts which involve commitments by the Company Group to make capital expenditures in excess of $100,000;
(ii) other than merchant agreements entered into in the ordinary course material contracts with any of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in Group’s top 10 customers or top 10 suppliers for fiscal year 2021 (collectively, the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018“Top Counterparties”);
(iii) each Contract with any Related Party (other than Contracts for the purchase of goods or services providing for (A) offer letters for employment on an at-will basis, annual payments by the Company Group in excess of $100,000 or (B) customary confidentiality, assignment aggregate future payments by the Company Group in excess of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)$250,000;
(iv) each Contract evidencing Contracts providing for (A) annual payments to the Company Indebtedness, including any loan Group in excess of $100,000 or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement(B) aggregate future payments to the Company Group in excess of $250,000;
(v) each Real Property Leaseany Contract (including letters of intent but excluding customary confidentiality and non-disclosure obligations) relating to the acquisition or disposition of any Person, business or Equity Interests or a material amount of assets of any other Person (whether by merger, sale of stock, sale of assets or otherwise) (A) entered into since January 1, 2019 or (B) pursuant to which any member of the Company Group has any Liabilities or obligations as of the date of this Agreement, including any contingent “earn-out,” or deferred purchase price or similar contingent payment obligations or any outstanding indemnification obligation;
(vi) each Contract with Contracts relating to Indebtedness, or granting any Card Association Lien (other than Permitted Liens) over the assets or NACHA and/or each Contract with a Equity Interests, of any member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHACompany Group;
(vii) each any Contract providing for material license or other material Contract pursuant to which indemnification by the Company Group, or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers favor of the Company or any of its Subsidiaries Group, other than indemnification provisions arising in the ordinary course of business consistent with past practice;
(viii) any partnership, joint venture or other similar Contract;
(ix) any Contract with a Governmental Authority (and any outstanding bids, proposals or offers);
(x) any contract, agreement or arrangement with any current or former Service Provider providing for the payment of any severance, retention, change in control, transaction or similar payments or benefits;
(xi) any collective bargaining or similar agreements;
(xii) any option, license, franchise or similar Contract;
(xiii) any Contract (A) that limits (or purports to limit) the freedom of any member of the Company Group or any of their Affiliates (including, following the Closing, Purchaser or its Affiliates) to compete in any line of business or with any Person or in any area, (B) that imposes exclusivity requirements (including “requirements” obligations), non-competition obligations, non-solicitation obligations or minimum payment, purchase or sale obligations (including “take-or-pay” provisions or “output” contracts), “most favored nations” or “most favored customer” restrictions or rights of first or last offer on any member of the Company Group or any of their Affiliates (including, following the Closing, Purchaser or its Affiliates), or otherwise restricts any member of the Company Group or any of their Affiliates (including, following the Closing, Purchaser or its Affiliates) in any material respect in the development, distribution, licensing, marketing, or sale of any of its products or services, (C) referral with a sole source supplier of material goods or services or (D) that purports to bind direct or indirect equityholders of any member of the Company Group or any of their respective Affiliates other than the members of the Company Group;
(xiv) agency, dealer, distributor, reseller or sales representatives Contracts pursuant to which the Company Group makes annual payments in excess of $100,000;
(xv) employment, consulting, management and non-competition agreements with any current of former Service Provider whose base annual compensation is equal to or greater than $100,000 and reseller agreements any Contract with a Key Employee;
(xvi) Contracts pursuant to which any member of the Company Group is a lessor or a lessee of any property, personal or real (except to the extent set forth on Section 3.8(a) of Schedule III), or holds or operates any tangible personal property owned by another Person, except for any leases of personal property under which the aggregate annual rent or lease payments do not exceed $100,000;
(xvii) any Contract with any broker, agent, finder, financial advisor, investment banker, agent or similar intermediary;
(xviii) any settlement or similar Contract (A) dated on or after January 1, 2019 or (B) providing for continuing obligations binding on any member of the Company Group as of the date of this Agreement; and
(xix) any other Contract or plan not made in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of that is material to the Company and its SubsidiariesGroup, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation No member of the Company Group has received within the last six (6) months prior to the date of this Agreement any written claim of default, intent to terminate or its applicable Subsidiary andbreach, not renew or challenge the validity or enforceability of any Contract set forth or required to be set forth on Section 3.10(a) of Schedule III, and no condition, event or facts have occurred or exist or are, to the knowledge Company’s Knowledge, threatened, which with notice, lapse of time or otherwise, would constitute a breach, violation or default of or under any Material Contract on the part of any member of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries norCompany Group or, to the knowledge of the Company’s Knowledge, any other party to any Material Contract. Each Contract listed or required to be listed on Section 3.10(a) of Schedule III is valid, is binding and enforceable against the Company or one or more members of the Company Group, as applicable, and the other parties thereto, except as such enforceability may be limited by (A) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally and (B) applicable equitable principles (whether considered in material violationa proceeding at law or in equity). True and complete copies of each Contract set forth or required to be set forth on Section 3.10(a) of Schedule III have been made available to Purchaser in the Data Room.
(c) No Top Counterparty (i) has canceled, material breach or material default under, any Material Contract, andterminated or, to the knowledge Company’s Knowledge, made any threat to cancel or otherwise terminate its relationship with the Company Group, (ii) has materially decreased the rates it pays to (in the case of a customer) or increased the rates it charges (in the case of a supplier) the Company Group or, to the Company’s Knowledge, there exists no condition or event whichthreatened to do so, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither has modified or indicated that it intends to modify, its relationship with the Company nor Group in a manner which is less favorable in any of its Subsidiaries material respect to the Company Group or has received written notice of default or termination under agreed not to or, to the Company’s Knowledge, indicated it will not agree to, do business on such rates, terms and conditions at least as favorable in any Material Contract; material respect as the rates, terms and (iv) conditions provided to the Company Group as of the date hereof, neither or (iv) is involved in any material claim, dispute or controversy with the Company nor its Subsidiaries have waived any material rights under any Material ContractGroup.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct 4.15 annexed hereto lists all material contracts, leases, commitments, technology agreements, software development agreements, software licenses, indentures and complete list of the following Contracts other agreements to which the Company or any of its Subsidiaries TechStar is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “"Material Contracts”):
") including, without limitation, the following: (i) each Contract with a Top Merchant any contract for the purchase of equipment, supplies, other materials, or Top Vendor;
(ii) other inventory items other than merchant agreements purchase orders for supplies entered into in the ordinary course of business, each Contract that involved ; (ii) any contract related to the expenditure purchase or receipt by the Company and its Subsidiaries lease of any capital asset involving aggregate payments of more than $500,000 in the aggregate during the twelve-month period ending 5,000 per annum that is not cancelable by TechStar on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more less than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
thirty (30) days notice; (iii) each Contract with all technology agreements, software development agreements and software licenses (except for pre-printed shrinkwrap licenses for commercially available and non-custom software applications) involving TechStar or any Related Party (other than (A) offer letters Affiliate of TechStar, regardless of the duration thereof or the amount of payments called for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
required thereunder; (iv) each Contract evidencing Company Indebtednessany guarantee, including any loan or credit make-whole agreement, security agreementor similar agreement or undertaking to support, guarantydirectly or indirectly, indenture, mortgage, pledge, conditional sale the financial or title retention agreement, equipment obligation other condition of any other person or lease purchase agreement;
entity; (v) each Real Property Lease;
contract for or relating to the employment of any officer, employee, technician, agent, consultant, or advisor to or for TechStar that is not cancelable by TechStar without penalty, premium or liability (for severance or otherwise) on less than thirty (30) days' prior written notice; (vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
license, royalty, franchise, distributorship, dealer, manufacturer's representative, agency and advertising agreements; (vii) each material license any contract with any collective bargaining unit; (viii) any mortgage of real property; (ix) any factoring agreement with respect to the accounts receivable of TechStar; (x) any pledge or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and security agreement by TechStar other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries guaranties entered into in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by mergerwhich are not material to TechStar, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, any joint venture, profit sharing venture agreement or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
arrangement; (xii) each Contract that is an exchange traded, over the counter any non-competition agreement or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency similar arrangement; and indices;
(xiii) each Contract entered into in connection with any contract, lease, commitment, indenture, or other agreement to which TechStar is a material settlement under which any Acquired Company has material outstanding obligations; or
party that may not be terminated without penalty, premium or liability by TechStar on not more than thirty (xiv30) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantdays' prior written notice.
(b) Except as has not had and would not be reasonably likely to have, individually or set forth in the aggregate, a Material Adverse EffectSchedule 4.15: (i) each all Material Contract is Contracts are in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary effect; (ii) TechStar and, to the knowledge of TechStar and AUGI, the Companyother parties thereto, each other party thereto (subject are in each case to compliance with all of their respective obligations under the Enforcement Exceptions); (ii) neither the CompanyMaterial Contracts in all material respects, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is and are not in material violation, material breach or material default underthereunder, nor has there occurred any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, notice or lapse of time or both, would constitute any such violation, breach or defaulta default thereunder; and (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as none of the date hereofMaterial Contracts will be voided, neither revoked or terminated, or voidable, revocable or terminable, in whole or in part, upon and by reason of the Company nor its Subsidiaries have waived Merger and the change of ownership of TechStar pursuant to this Agreement or otherwise as a result of the transactions contemplated hereby.
(c) No purchase commitment by TechStar is in excess of the normal, ordinary and usual requirements of the business of TechStar.
(d) There is no outstanding power of attorney granted by TechStar to any material rights under person, firm or corporation for any Material Contractpurpose whatsoever.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) Except as set forth on Schedule 3.09(a), neither the Company nor any of its Subsidiaries is party to or bound by any of the Company Disclosure Schedule sets forth following:
(i) except for purchase orders issued in the ordinary course of business, a correct and complete list of the following Contracts contract that is reasonably expected to which require aggregate payment by the Company or any of its Subsidiaries of $150,000 or more within a twelve month period and which is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of not terminable by the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top Vendorany of its Subsidiaries on less than 90 days prior notice;
(ii) any continuing contract for the purchase, sale or license of materials, supplies, equipment, services, software, Intellectual Property or other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure assets with a Significant Supplier or receipt by Significant Customer or any purchase order from the Company and or any of its Subsidiaries of to a vendor with $100,000 or more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018outstanding;
(iii) each Contract with any Related Party (other than (A) offer letters material license, sale, distribution, marketing, agent, franchise or similar agreement relating to or providing for employment on an at-will basis, (B) customary confidentiality, assignment the marketing or sale of inventions and/or noncompetition the products or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements)services;
(iv) each Contract evidencing any material licenses, sublicenses and other contracts pursuant to which the Company Indebtednesshas agreed to any restriction on the right of the Company or its Subsidiaries to use or enforce any Intellectual Property or pursuant to which the Company agrees to encumber, including transfer or sell rights in or with respect to any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreementIntellectual Property;
(v) each Real Property Leasecontract with any Governmental Body;
(vi) each Contract partnership, joint venture, or other similar material contract, arrangement or agreement (including any profit sharing agreements not constituting a Plan);
(vii) collective bargaining agreement or contract with any Card Association labor union, other than as described in Section 3.18 or NACHA and/or each Contract with Schedule 3.18;
(viii) material bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.12 or the Disclosure Schedules relating thereto;
(ix) stock purchase, stock option or similar plan, other than as described in Section 3.12 or the Disclosure Schedules relating thereto;
(x) other than as described in Section 3.12 or the Disclosure Schedules relating thereto a member contract for the employment of any officer, individual employee or other individual Person on a Card Association enabling full-time or consulting basis providing for fixed compensation in excess of $100,000 per annum that is not immediately terminable;
(xi) contract relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHAassets, other than the obligations and Liens set forth on Schedule 3.06(e);
(viixii) each material license guaranty of any obligation for borrowed money, other than those released in connection with the Closing as set forth on Schedule 3.06(e);
(xiii) lease or rental contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000.00;
(xiv) any confidentiality, secrecy or non-disclosure agreement, other than any such contract entered into with customers and distributors or other Persons in the ordinary course of business and other than any such contract entered into in connection with a potential sale of the Company;
(xv) any material Contract pursuant to settlement agreement under which the Company and its Subsidiaries or the counterparty thereto has unsatisfied obligations;
(xvi) any agreement or contract requiring the Company or any of its Subsidiaries grants to indemnify or receives rights hold harmless any Person, other than in or to use the ordinary course of business consistent with past practice;
(xvii) any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off contract limiting the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers freedom of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by mergerto engage or participate, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of compete with any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course)Person, in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, market or from freely providing services geographic area, or supplying products to make use of any material Intellectual Property, or any contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xivxviii) will be required agreement or contract to be filed with enter into any of the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantforegoing.
(b) Except as Parent has not had been given access to a true and would not be reasonably likely to havecorrect copy of all contracts which are listed on Schedule 3.09(a), individually together with all material amendments, waivers or in the aggregate, a Material Adverse Effect: other changes thereto.
(c) (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of is in material breach or material default or termination under any contract listed on Schedule 3.09(a) (each, a “Material Contract; ” and, collectively, the “Material Contracts”), and (ivii) as to the Company’s Knowledge, the other party to each of the date hereof, neither the Company nor its Subsidiaries have waived any Material Contracts is not in material rights under any Material Contractdefault thereunder.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company Except for any Leases or guarantees entered into in connection with any of its Subsidiaries is a party Leases, or otherwise bound (the Contracts required to be as set forth on Schedule 3.10(a), and except for agreements entered into by any Group Company after the date hereof in accordance with Section 3.14(a) of the 5.01, no Group Company Disclosure Schedule collectively, the “Material Contracts”):is party to any:
(i) each Contract with or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Top Merchant or Top VendorLien (other than a Permitted Lien) on any material portion of the assets of the Group Companies;
(ii) guaranty of any obligation for borrowed money or other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018material guaranty;
(iii) each lease or Contract under which it is lessee, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $25,000 (excluding the Leases);
(iv) Contract with any Related Party Specified Customer or Specified Supplier;
(v) Contract with any Specified Affiliated Network;
(vi) Contracts with any Specified Publisher;
(vii) Contracts relating to any business acquisition or disposition entered into by any Group Company within the last three (3) years, or with respect to which there are any remaining material obligations;
(viii) any partnership, joint venture or other similar agreement or arrangement;
(ix) any Contract providing for the settlement or compromise of any Action relating to the Group Companies within the past three (3) years that has obligated a Group Company to pay an amount in excess of $25,000, or that imposes material ongoing obligations or restrictions on any of the Group Companies;
(x) Contracts granting to a Group Company any licenses to Intellectual Property Rights owned by a third party (other than (A) offer letters for employment on an at“off-will basisthe-shelf” or other commercially available software or software services with annual costs of less than $100,000, (B) customary confidentialityContracts entered into with employees, assignment contractors, consultants, service providers, resellers or distributors in the Ordinary Course of inventions and/or noncompetition or other similar arrangements and Business, (C) Company Benefit Plans confidentiality agreements entered into in the Ordinary Course, and Company Benefit Arrangements)(D) Open Source Software agreements;
(ivxi) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract Contracts pursuant to which the a Group Company or grants to a third party any of its Subsidiaries grants or receives rights in or licenses to use any material Intellectual Property, but excluding Company IP (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course Ordinary Course of business and (C) referral agreements and reseller agreements in the ordinary course of businessBusiness);
(viiixii) each Contract for the that (A) disposition (whether by merger, consolidation, sale restrains the ability of equity a Group Company to compete or assets conduct business in a product line or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, business or in any territory or (B) restricts a Group Company from purchasing any product or acquiring an interest in service exclusively from any other Person;
(x) each Contract in which the Company Person or any of its Subsidiaries has granted that contains a “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indicesprovision;
(xiii) each Contract entered into with any employee or individual independent contractor with any Group Company which provides for annual base compensation in connection with a material settlement under excess of $200,000, excluding offer letters which any Acquired Company has material outstanding provide for at-will employment and no severance obligations; or
(xiv) will be required to be filed any collective bargaining agreement or other Contract with the Registration Statement under applicable SEC requirements any labor organization or would otherwise be required to be filed by the Company as an exhibit for other representative of any employees of a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantGroup Company.
(b) Except as Buyer either has not had and would not be reasonably likely to havebeen supplied with, individually or in the aggregatehas been given access to, a true and correct copy of all written Contracts that are referred to or required to be referred to on Schedule 3.10(a) (collectively, such Contracts whether or not written, the “Material Adverse Effect: Contracts”).
(ic) each Each Material Contract is valid and binding on the Group Companies and is in full force and effect and is a legal(except as limited by the Remedies Exception). No Group Company has, validin any material respect, binding and enforceable obligation of the Company violated or its applicable Subsidiary andbreached, to or committed any default under, any Material Contract. To the knowledge of the CompanySeller, each no other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the CompanyPerson has materially violated or breached, or committed any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and. No event has occurred and is continuing through any Group Company’s actions or inactions or, to the knowledge of the CompanySeller, there exists no condition any actions or event whichinactions by any other party thereto, after notice, lapse that will result in a material violation or breach of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice the provisions of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list 3.4 lists each of the following Contracts to which the Company contracts or any of its Subsidiaries is a party or otherwise bound agreements (the Contracts required to be set forth in Section 3.14(aif any) of the Company Disclosure Schedule collectively, the “Material Contracts”):each of Hurray! Times:
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements any material contract entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more otherwise than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(ii) all material documents evidencing or creating indebtedness for borrowed money of Hurray! Times with a remaining principal balance in excess of RMB100,000 individually and outstanding on the date of this agreement which will not be retired or repaid on or prior to the Closing Date;
(iii) any material agreement or arrangement otherwise than by way of an arm’s length transaction;
(iv) all agreements between Hurray! Times and Network Operators in PRC and/or any subsidiaries, branches or affiliates thereof
(v) any sale or purchase option or similar contract or arrangement affecting any material assets owned or used by Hurray! Times or by which Hurray! Times is bound;
(vi) any contract which cannot readily be fulfilled or performed by Hurray! Times on time or without undue or unusual expenditure of money or effort;
(vii) any agreement whereby Hurray! Times is, or has agreed to become, a member of any joint venture, consortium or partnership or other unincorporated association, except for those relating to the Dissolving Subsidiaries;
(viii) each Contract for the (A) disposition (whether by mergerany agreement whereby Hurray! Times is, consolidationor has agreed to become, sale of equity a party to any distributorship or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (agency agreement other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits any agreement with a customer which constitutes five percent (5%) or more of the Company or any annual sales of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring Hurray! Times on an interest in any other Personannual basis;
(x) each Contract in any agreement with a supplier which constitutes five percent (5%) or more of the Company or any total supply of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partythat Hurray! Times on an annual basis;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral any inter-company agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on arrangements between any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantGroup Companies.
(b) Except as has not had True and would not be reasonably likely complete copies of the contracts and agreements disclosed pursuant to have, individually or in the aggregate, a Material Adverse Effect: this Section have been made available to TWM. (i) each Material Contract contract and agreement disclosed pursuant to Section 3.14 is valid and binding on Hurray! Times thereto, and is in full force and effect and is a legalin accordance with its respective terms, valid, binding and enforceable obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the CompanyHurray! Times has never been in breach of, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contractsuch contract or agreement, andand no event exists that, to but for the knowledge giving of the Company, there exists no condition notice or event which, after notice, lapse passage of time or bothtime, would constitute any result in breach thereof or default thereunder, and no events exists that, but for the giving of notice or passage of time, would result in such violation, a breach or default; (iii) neither default by the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractother party thereto.
Appears in 1 contract
Samples: Share Transfer Agreement (Hurray! Holding Co., Ltd.)
Contracts and Commitments. (a) Section 3.14(a6.09(a) of the Company Seller Disclosure Schedule sets forth a correct and complete list Letter lists or identifies all of the following Contracts to which the Company or any of its Subsidiaries Transferred Group Member is a party and which are currently in effect as of the date hereof, other than any Parent Benefit Plan or otherwise bound any Rome Group Employee Benefit Plan (such Contracts, of the Contracts type required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectivelyso scheduled, but whether or not so scheduled, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top VendorContracts that involve remaining unpaid commitments to make capital expenditures in excess of $300,000 per year;
(ii) other than merchant agreements entered into in Contracts with the ordinary course of business, each Contract that involved the expenditure or receipt by the Company Transferred Group Members’ (A) Material Customers and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018(B) Material Suppliers;
(iii) each Contract data redistribution or similar agreements pursuant to which any Transferred Group Member is authorized to distribute any data, other than open data or public data, obtained from or provided by the counterparty thereto;
(iv) Contracts evidencing indebtedness for borrowed money of any Transferred Group Member or any guaranty, letter of credit, performance bond or other credit support by any Transferred Group Member of any obligation in respect of borrowed money, other than any guaranty of obligations of Parent that is to be released at or before the Closing;
(v) Contracts under which any material asset of any Transferred Group Member is encumbered by a Lien (other than a Permitted Lien);
(vi) Contracts with agents, dealers, distributors or independent third party sales representatives under which (A) the counterparty sells or markets the products of the Transferred Group Members to customers and (B) the Transferred Group Members make payments to such Persons in excess of $100,000 per year;
(vii) Contracts pursuant to which any Transferred Group Member is a lessor or sub-lessor or a lessee, sub-lessee or occupant of any Leased Real Property;
(viii) Contracts that (A) grant any right of first refusal, right of first offer or similar right to a third party, (B) otherwise restrict or purport to restrict in any material respect the ability of the Transferred Group Members to compete in any line of business or geographical area, other than use or similar restrictions in licenses of Intellectual Property, (C) provide for an earn-out or similar deferred conditional payment obligation to a third party, (D) include any “most favored nation” provision that restricts the Transferred Group Members or (E) contain any exclusivity obligation that restricts the Transferred Group Members, other than any such obligation in immaterial Contracts with suppliers;
(ix) Contracts for the acquisition or disposal of any business or any assets (whether by merger, sale of stock, sale of assets or otherwise) material to the Transferred Group Members, taken as a whole;
(x) Intellectual Property Agreements material to the Transferred Group Members, taken as whole, including all exclusive licenses of Owned Intellectual Property, patent licenses, licenses entered into in relation to settlement of litigation, licenses of source code (excluding open source software) and co-existence agreements. For the avoidance of doubt, the following are not considered material for the purposes of this Section 6.09(a)(x): (A) non-exclusive software as a service agreements or license agreements entered into with customers in the Ordinary Course of Business (B) licenses for generally commercially available, off-the-shelf software that is licensed under standard terms and (C) non-exclusive software as a service agreements or license agreements entered into with suppliers in the Ordinary Course of Business;
(xi) collective bargaining agreements or other Contracts with any Related Party labor union, works council, or other employee representative relating to any employees, workers, consultants, managers, officers or directors of the Transferred Group Members;
(xii) Contracts relating to any pending Action, other than customary Contracts relating to the processes or procedures of mediation or arbitration entered into in the Ordinary Course of Business;
(xiii) Contracts relating to any obligations of any Transferred Group Member with respect to the issuance, sale, repurchase or redemption of any Ownership Interests, in each case, other than pursuant to any of the Rome Equity Plans;
(xiv) Contracts evidencing any partnerships or joint ventures;
(xv) Contracts evidencing or relating to any Transferred Group Minority Owned Entity;
(xvi) Contracts with any professional employer organization (“PEO”) or employee staffing agency, other than any such Contract that is terminable at will by the applicable Transferred Group Member without any further Liability thereunder;
(xvii) Contracts disclosed on Section 6.17 of the Seller Disclosure Letter; and
(xviii) any other Contracts that require the payment by, or to, any Transferred Group Member after the date hereof of an amount in excess of $250,000 per year, other than (A) offer letters for employment on an at-will basisContracts with customers and Contracts with suppliers, in each case entered into in the Ordinary Course of Business, (B) customary confidentiality, assignment Contracts relating to employment or compensation of inventions and/or noncompetition or other similar arrangements employees and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract Contracts with any Card Association or NACHA and/or each Contract with a member Affiliates of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantParent.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each No Material Contract is has been breached in full force and effect and is a legal, valid, binding and enforceable obligation of the Company or its applicable Subsidiary andany material respect by any Transferred Group Member or, to the knowledge Knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the CompanyTransferred Entities, any other party thereto, which has not been duly cured or reinstated, or been canceled by written notice by the other party or parties to such Material Contract, (ii) no Transferred Group Member is in receipt of any written claim of default by any Transferred Group Member under any such Material Contract, and no Transferred Group Member, nor to the Knowledge of the Transferred Entities, any other Person, currently contemplates any termination or material amendment of any Material Contract, is in material violation(iii) no event or circumstance has occurred that, material breach with or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition without notice or event which, after notice, lapse of time or both, would constitute any such violation, a material breach or default; (iii) neither the Company nor any default of its Subsidiaries has received written notice of default or termination under any Material Contract; Contract by any Transferred Group Member or result in or give any Person a right of acceleration or early termination thereof and (iv) each Material Contract is valid, binding and enforceable against the applicable Transferred Group Member party thereto and, to the Knowledge of the Transferred Entities, each other party thereto (except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies). Complete and correct copies of the Material Contracts in effect as of the date hereof, neither the Company nor its Subsidiaries hereof have waived any material rights under any Material Contractbeen provided to Purchaser.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a2.13(a) of the Company Seller Disclosure Schedule sets forth a correct and complete list lists, to the knowledge of the following Seller Parties and as of the date of this Agreement, (i) all Contracts (other than agreements described in Section 2.16) to which OpenTV or any of its Subsidiaries is a party that are to be performed in whole or in part after the date hereof and that would be required to be filed with the Commission pursuant to the Exchange Act as an exhibit were OpenTV required to file Annual Reports on Form 10-K, (ii) all agreements, bonds, notes, debentures or similar instruments evidencing (A) indebtedness of OpenTV or any of its Subsidiaries for borrowed money or for the deferred purchase price of any material property or service (other than trade accounts arising in the ordinary course of business that do not exceed US $100,000 individually or US $1,000,000 in the aggregate), (B) obligations of OpenTV or any of its Subsidiaries under capital leases requiring annual payments in excess of US $50,000, (C) guarantees, surety contracts, letters of credit and indemnity agreements (other than customary indemnity provisions in any Contract that are consistent with general industry practice), (iii) all Contracts to which the Company OpenTV or any of its Subsidiaries is a party or otherwise to or by which any of their respective assets or properties are subject or are bound that were entered into outside the ordinary course of business and pursuant to which any obligations or liabilities (whether absolute, contingent or otherwise) remain outstanding, (iv) all Contracts (other than agreements described in Section 2.16) not terminable by OpenTV on 90 days or less notice without liability to OpenTV or any of its Subsidiaries (other than for the payment of amounts payable thereunder that have accrued to the date of termination thereof), that (A) involved the payment by OpenTV or any of its Subsidiaries of more than US $100,000 during the 12-month period ended December 31, 2001, or (B) are currently projected to involve the payment of more than US $100,000 by OpenTV or any of its Subsidiaries during the 12-month period ending December 31, 2002 and (v) all Contracts (other than agreements described in Section 2.16) terminable by any party thereto other than OpenTV or any of its Subsidiaries on 90 days or less notice without liability to any such other party (other than for the payment of amounts payable thereunder that have accrued to the date of termination thereof) that (A) involved the receipt by OpenTV or any of its Subsidiaries of more than US $1,000,000 during the 12-month period ended December 31, 2001 or (B) are currently projected to involve the receipt by OpenTV or any of its Subsidiaries of more than US $1,000,000 during the 12-month period ending December 31, 2002 (clauses (i) through (v), together with any Contracts set forth or required to be set forth in Section 3.14(a) 2.11 of the Company Seller Disclosure Schedule Schedule, collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements entered into in "DISCLOSED CONTRACTS"). To the ordinary course knowledge of businessthe Seller Parties, each Contract that involved the expenditure or receipt by the Company OpenTV and its Subsidiaries have fulfilled in all material respects, or taken all actions necessary to enable them to fulfill in all material respects when due, their respective obligations under each Disclosed Contract to which they are parties. To the knowledge of more the Seller Parties, all parties to the Disclosed Contracts other than $500,000 the OpenTV and its Subsidiaries have complied in all material respects with the aggregate during the twelve-month period ending on December 31provisions thereof and no party is in breach or violation of, 2017 or in default (with or without notice or lapse of time, or both) under, such Disclosed Contracts, which breach, violation or default has had or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party;
(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit sharing or similar enterprise (other than referral agreements and reseller agreements in the ordinary course of business);
(xii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a have an OpenTV Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation . As of the Company or its applicable Subsidiary anddate of this Agreement, to the knowledge of the CompanySeller Parties, each other party thereto (subject none of OpenTV or its Subsidiaries has received any notice of termination, cancellation or acceleration of any Disclosed Contract. True and complete copies of all Disclosed Contracts listed or required to be listed in each case Section 2.11 or 2.13(a) of the Seller Disclosure Schedule have been made available to the Enforcement Exceptions); Purchasers.
(iib) neither Section 2.13(b) of the Company, Seller Disclosure Schedule lists (i) each Contract to which OpenTV or any of its Subsidiaries norare parties or by which any of their respective assets are bound that contain any "most favored nations" provisions, as such term is commonly understood in the cable television and satellite television industries ("MFN CONTRACTS"), (ii) ***, and (iii) each Contract between OpenTV or any of its Subsidiaries, on the one hand, and any member of the MIH Group or any of their Affiliates (other than OpenTV or any of its Subsidiaries), on the other ("AFFILIATE CONTRACTS"; the MFN Contracts, *** and the Affiliate Contracts are referred to collectively as the "MATERIAL CONTRACTS" and each such Contract is referred to individually as a "MATERIAL CONTRACT"). True and complete copies of all Material Contracts listed or required to be listed in Section 2.13(b) of the Seller Disclosure Schedule have been made available to the Purchasers. OpenTV and its Subsidiaries have fulfilled in all material respects, or taken all actions necessary to enable them to fulfill in all material respects when due, their respective obligations under each Material Customer Contract to which they are parties. To the knowledge of the Seller Parties, OpenTV and its Subsidiaries have fulfilled in all material respects, or taken all actions necessary to enable them to fulfill in all material respects when due, their respective obligations under each MFN Contract and Affiliate Contract. Except as set forth in Section 2.13(b) of the Seller Disclosure Schedule, to the knowledge of the CompanySeller Parties, any all parties to the Material Contracts other than OpenTV and its Subsidiaries have complied in all material respects with the provisions thereof and no party to any Material Contract, is in material violation, material breach or material violation of, or in default under, any Material Contract, and, to the knowledge of the Company, there exists no condition (with or event which, after notice, without notice or lapse of time or both) under, would constitute any such violationMaterial Contracts, breach which breach, violation or default; (iii) neither the Company nor any of its Subsidiaries default has received written notice of default had or termination under any is reasonably likely to have a Seller Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Adverse Effect or an OpenTV Material Contract.Adverse Effect. ***
Appears in 1 contract
Contracts and Commitments. (a) Section 3.14(a4.17(a) of the Company Disclosure Schedule sets forth a correct and complete list lists each of the following Contracts (and all amendments, modifications and supplements thereto and all side letters to which the Company or any of its Subsidiaries is a party affecting the current obligations of any party thereunder) to which the Company or any of its Subsidiaries is a party or otherwise by which any of their respective properties or assets are bound (each such Contract, and each Contract listed in Section 4.15 (Real Estate; Properties), 4.18 (Intellectual Property Rights) or 4.22 (Certain Loans and Other Transactions) of the Company Disclosure Schedule, as well as all Contracts required to be set forth (including in Section 3.14(a) order to ensure the accuracy of the Company Disclosure Schedule collectivelyrepresentations and warranties in) in Sections 4.17 (Contracts and Commitments), the 4.15 (Real Estate; Properties), 4.18 (Intellectual Property Rights) or 4.22 (Certain Loans and Other Transactions) that is not so listed, a “Material ContractsContract”):
(i) each any Contract with a Top Merchant or Top Vendorany Governmental Entity;
(ii) any Contract with any telecommunications company or carrier, collocation company, or hosting or internet service provider;
(iii) any Contract or indenture relating to Indebtedness or any guarantee by the Company or its Subsidiaries of the obligations of any other party or relating to any interest rate, currency or commodity derivatives or hedging transactions;
(iv) any partnership, limited liability company agreement, joint venture, profit-sharing or similar agreement (other than merchant agreements with sales agents containing revenue sharing agreements or arrangements) entered into in with any Person;
(v) any Contract for the ordinary course acquisition, disposition, merger or sale or similar transaction involving any business or material assets (including Intellectual Property) of businessthe Company or any of its Subsidiaries, each Contract other than for Contracts that involved have been consummated as of the expenditure or receipt by date of this Agreement for aggregate consideration under such agreement of less than $100,000 and for which the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelvehave no continuing indemnification, “earn-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition out” or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan material or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Leasecontingent obligations;
(vi) each Contract any collective bargaining agreements, memoranda or understandings, settlements or other labor agreements with any Card Association union or NACHA and/or each Contract with a member of a Card Association enabling labor organization applicable to the Company’s , its Affiliates or any of its Subsidiaries’ participation in such Card Association or NACHAtheir employees;
(vii) each material license any Contract that obligates the Company or its Subsidiaries to make any capital commitment or expenditure, individually or in the aggregate, in excess of $100,000;
(viii) any employment, bonus, retention, severance or other material similar agreement which (x) contains a change of control, or “golden parachute” provision or (y) that otherwise provides for base salary or base compensation in any fiscal year that is equal to or greater than $100,000;
(ix) any Contract pursuant which is performed (in whole or in part) outside of the United States, where a party that is a natural person to the agreement is not a United States citizen, or where all or a portion of the agreement is subcontracted to a natural person that is not a United States citizen;
(x) any Contract to which the Company or any of its Subsidiaries grants is a party or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company by which they or any of its Subsidiaries their assets are bound and which involves consideration or other obligations in the ordinary course excess of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries, and excluding Company Profits Units granted in the ordinary course), in each case, entered into since January 1, 2014;
(ix) each Contract that, by its terms, prohibits the Company or any of its Subsidiaries from (A) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;
(x) each Contract in which the Company or any of its Subsidiaries has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any service, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single party$100,000 annually;
(xi) each Contract concerning all broker, dealer, manufacturer’s representative, distributor, franchise, agency, and consulting Contracts (not including distributor, franchise, agency and consulting Contracts with sales personnel that is terminable at the establishment option of the Company without any Liability and is for a term of one-year and with substantially the same terms as the Company’s form of sales personnel agreement made available to Parent);
(xii) all Contracts involving the payment of royalties or operation other amounts payable by the Company or a Company Subsidiary calculated based upon the revenues or income of the Company or a partnership, joint venture, profit sharing Company Subsidiary or similar enterprise income or revenues related to any product of the Company or a Company Subsidiary (other than referral agreements Contracts involving compensation in connection with the sale and reseller agreements distribution of any product of the Company or a Company Subsidiary entered into in the ordinary course of business);
(xiixiii) each any Contract that is an exchange tradedcontaining (A) most favored nation, over the counter exclusive rights, or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index minimum purchase requirements in favor of any kind third party, (B) any right of first refusal or nature whatsoeverfirst offer or (C) any provision that limits the ability of the Company or any Company Subsidiary to (x) compete or operate in any line of business, whether tangible or intangiblewith any Person or entity, including currenciesor in any market or geographic area or during any period of time or (y) acquire or sell any product, interest rates, foreign currency and indicesassets or services or otherwise develop or distribute any technology (excluding license limitations contained in inbound licenses which limitations are of the type ordinarily included in commercial licenses);
(xiii) each Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be any Contract obligating the Company or any of its Subsidiaries to pay a minimum royalty, fee or other payment regardless of usage or purchase;
(xv) any Contract obligating the Company or any of its Subsidiaries (A) to purchase or otherwise obtain a product or service exclusively from any Person or (B) sell or provide any product or service exclusively to any Person;
(xvi) all Contracts that result in any person or entity holding a power of attorney from the Company or any Company Subsidiary that relates to the Company, any Company Subsidiary or their respective businesses;
(xvii) any Contract providing for indemnification, contribution or any guaranty other than any indemnities contained in Contracts for the purchase, sale or license of products or services in the ordinary course of business and that are materially consistent with past practice pursuant to the Company’s standard forms, in the form made available to Parent;
(xviii) any Contract entered into since December 1, 2009, or for which the Company or its Subsidiaries have any ongoing obligations or potential Liabilities, to settle or compromise any Action, or any Action threatened in writing, other than (A) releases entered into with former employees or independent contractors of the Company which do not contain cash settlements in excess of $20,000 or (B) settlements of accounts payable in the ordinary course of business consistent with past practice for cash amounts paid prior to September 30, 2012 which do not exceed, individually or in the aggregate, $20,000;
(xix) with respect to any customer or Referral Partner required to be filed specified in Section 4.25(a) of the Company Disclosure Schedule, all Contracts with such customers or Referral Partners, including any amendments thereto that exceed $100,000 in sales with respect to any customer, or commissions paid with respect to any Referral Partner, for the Registration Statement under applicable SEC requirements 12-month period ending on September 30, 2012;
(xx) with respect to any supplier required to be specified in Section 4.25(b) of the Company Disclosure Schedule, all Contracts with such suppliers where costs of goods or services purchased are over $200,000 for the 12-month period ending on September 30, 2012;
(xxi) any Contract to which any Related Person, or any of their immediate family members, is a party or has an interest in, whether directly or indirectly, other than employment, compensation and benefit arrangements for services as an officer or employee thereof (each, a “Related Person Contract”);
(xxii) any Contracts that purport to bind third-parties who were not Affiliates of the Company or its Subsidiaries on the original date of such Contract, but that become Affiliates after the date of such Contract;
(xxiii) any Contract relating to the marketing or advertising of any products or services of the Company or its Subsidiaries in an amount exceeding $100,000 individually;
(xxiv) any Contract that is or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 “Material Contract” with the SEC pursuant to Items 601(b)(1), (2), (4), (9) or (10Item 601(b)(iv) of Regulation S-K under the Securities Act as if or disclosed by the Company was the registrant.in a Current Report on Form 8-K; and
(bxxv) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of commits the Company or its applicable Subsidiary and, to the knowledge of the Company, each other party thereto (subject in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge enter into any of the Company, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) as of the date hereof, neither the Company nor its Subsidiaries have waived any material rights under any Material Contractforegoing.
Appears in 1 contract
Samples: Merger Agreement (Telanetix,Inc)
Contracts and Commitments. (a) Section 3.14(a) 4.8 of the Company Disclosure Schedule sets forth a correct and complete list of lists the following Contracts (including all amendments, modifications and supplements thereto) to which the a Company or any of its Subsidiaries Group Member is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) as of the Company Disclosure Schedule date hereof (collectively, the “Material Company Xxxxx Xxxxxxxx Contracts”):
(i) (A) any material Contract relating to the borrowing of money or to the issuance of any note, bond, debenture or other evidence of indebtedness, or to mortgaging, pledging or otherwise placing a material Encumbrance on any securities or assets of any Company Group Member; (B) any Contract in the nature of a letter of credit, bankers’ acceptance and similar facilities involving any Company Group Member as an account party or beneficiary; (C) any Contract in the nature of a capital or direct financing lease that is required by GAAP to be treated as a long-term liability involving payments above $250,000 annually; and (D) any Contract containing material earn-out obligations or other contingent payment obligations for the deferred purchase price of property or services, in each Contract with a Top Merchant or Top Vendorcase other than any such Contracts whose liabilities will be fully discharged under the Bankruptcy Code;
(ii) any Contract involving any guaranty of any obligation for borrowed money or other material guaranty, performance or completion bond or indemnity or surety arrangement or otherwise relating to the assumption or guarantee of any obligation by or of any Company Group Member, other than merchant agreements entered into any such Contracts whose liabilities will be fully discharged under the Bankruptcy Code;
(iii) any license, sublicense, development, collaboration or royalty agreement or other Contract relating to the use by any Company Group Member of any material third-party Intellectual Property (other than commercially available software or software subject to click-through or shrink-wrap agreements);
(iv) any license, sublicense, development, collaboration or royalty agreement or other Contract relating to the use of any Intellectual Property of any Company Group Member by any third party (other than licenses granted to customers, resellers and distributors in the ordinary course of business, each Contract that involved the expenditure or receipt by the ) pursuant to which any Company and its Subsidiaries of more than Group Member receives annual payments above $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement250,000;
(v) any Contract including a covenant not to compete with any Person, Contracts granting any exclusivity or preferential right of first refusal or right of first offer to any Person or otherwise creating an exclusive relationship with a Person, in each Real Property Leasecase, to the extent such Contract materially restricts or limits the activities of any Company Group Member or the ability of any Company Group Member to engage or compete in any line of business or any geographic area or from developing or commercializing any pharmaceutical products;
(vi) each any Contract with for the acquisition or disposition of any Card Association business, any merger, consolidation, plan or NACHA and/or each Contract with a member scheme of arrangement or reorganization, or acquisition or disposition of a Card Association enabling the Company’s material amount of stock or assets of any Person or any material real property (whether by merger, sale of its Subsidiaries’ participation in such Card Association stock, sale of assets or NACHAotherwise) to the extent any Company Group Member has any remaining material obligations thereunder;
(vii) each material license other than as contemplated by the applicable Transaction Documents, any Contract that by its terms limits the payment of dividends or other material Contract pursuant to which distributions by the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of businessCompany;
(viii) each any Contract for the (A) disposition (whether by merger, consolidation, sale involving consideration in excess of equity or assets or otherwise) of any significant portion of the assets or business of the Company and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of Equity Interests of any Acquired Company (other than by the Company or its Subsidiaries$250,000 individually, and excluding Company Profits Units granted $500,000 in aggregate for Contracts involving substantially the ordinary course)same customer, supplier or subject matter, and which, in each case, entered into since January 1, 2014;cannot be cancelled by the applicable Company Group Member without penalty or without more than thirty (30) days’ notice;
(ix) each Contract that, by its terms, prohibits the Company employment agreements and Contracts with independent contractors or any of its Subsidiaries from consultants which are not cancellable without material penalty or without more than thirty (A30) entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any territory or (B) purchasing or acquiring an interest in any other Person;days’ notice;
(x) each Contract in which the any Contracts between any directors or officers of any Company Group Member or any of its Subsidiaries has granted “most favored nation” pricing provisions their Affiliates, on the one hand, and such Company Group Member or exclusive marketing or distribution rights relating to any serviceother Company Group Member, product or territory or has agreed to purchase or otherwise obtain any material product or service exclusively from a single party or sell any material product or service exclusively to a single partyon the other hand;
(xi) each material Contract concerning the establishment or operation of a partnership, that provides for any joint venture, profit sharing partnership or similar enterprise (arrangement or any Contract involving a sharing of revenues, profits, losses, costs or Liabilities between any Company Group Member, on the one hand, and any other than referral agreements and reseller agreements in Person, on the ordinary course of business)other hand;
(xii) each any “single source” supply Contract pursuant to which goods or materials that is are material to the Company Business are supplied to any Company Group Member from an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;exclusive source; or
(xiii) each any Contract entered into in connection with a material settlement under which any Acquired Company has material outstanding obligations; or
(xiv) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrantGovernmental Entity.
(b) The Plan Investor either has been supplied with, or has been given access to, a true, correct and complete copy of all written Company Xxxxx Xxxxxxxx Contracts or a summary of all oral Company Xxxxx Xxxxxxxx Contracts. Except as (i) set forth in the Plan, or (ii) has not had and would not reasonably be expected to have a Company Material Adverse Effect, each Company Xxxxx Xxxxxxxx Contract (assuming due power and authority of, and due execution and delivery by, the other party or parties thereto) is in full force and effect and is valid, binding and enforceable against the applicable Company Group Member and, to the Company’s Knowledge, the other parties thereto, in accordance with their respective terms (except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors rights).
(c) Except as has not had and would not reasonably be reasonably likely expected to have, individually have a Company Material Adverse Effect or except as set forth in the aggregate, a Material Adverse Effect: (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation Plan or on Section 4.8 of the Company Disclosure Schedule, (A) within the one-year period preceding the date of this Agreement, no Company Group Member has violated or its applicable Subsidiary andbreached, to the knowledge of the Company, each other party thereto (subject or committed any default in each case to the Enforcement Exceptions); (ii) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party to any Material Contract, is in material violation, material breach or material default respect under, any Material Contract, and, to the knowledge of the Company, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither the Company nor any of its Subsidiaries has received written notice of default or termination under any Material Contract; and (iv) Xxxxx Xxxxxxxx Contract that remains uncured as of the date hereof, neither and (B) to the Company’s Knowledge, as of the date of this Agreement, no other Person has violated or breached, or committed any default in any respect under, any Company nor its Subsidiaries have waived Xxxxx Xxxxxxxx Contract that remains uncured as of the date hereof; and (C) as of the date of this Agreement, no event has occurred and is continuing through any material rights under Company Group Member’s actions or inactions, as applicable, that will result in a violation or breach in any Material respect of any of the provisions of any Company Xxxxx Xxxxxxxx Contract.
Appears in 1 contract
