Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form 10-K, the Company’s quarterly reports on Form 10-Q or the Company’s current reports on Form 8-K, in each case, filed by the Company prior to the date of this Agreement. All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company or the applicable Company Subsidiary, and, to the knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Company and the Company Subsidiaries have performed in all material respects their respective covenants thereunder which are presently required to be performed and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor, to the knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts have been made available to Parent. (b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person. (c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the Merger. (d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000. (e) To the knowledge of the Company, no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiary. (f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 3 contracts
Samples: Merger Agreement (Cubist Pharmaceuticals Inc), Merger Agreement (Adolor Corp), Merger Agreement (Cubist Pharmaceuticals Inc)
Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a) of the Company Disclosure LetterSchedule, neither the Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) required to be disclosed in a Form 10-K, Form 10-Q filed as an exhibit to or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form 10-K, the Company’s quarterly reports on Form 10-Q or the Company’s current reports on Form 8-K, in each case, filed by the Company SEC Reports prior to the date of this AgreementAgreement (each a “Material Contract”) that has not been so filed or disclosed. All of such contracts and other agreements are Each Material Contract required to be (i) filed as an exhibit to the Company’s Annual Report on Form 10-K filed on March 27, 2009 or (ii) filed or disclosed in any Company SEC Report filed after December 31, 2008, is valid, subsisting, in full force and effect, effect and binding upon the Company or the applicable Company Subsidiary, and, and to the knowledge of the Company, binding upon the other parties thereto in accordance with their termsits terms (except to the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and the effect of general principles of equity, regardless of whether such enforceability is considered in a proceeding at Law or in equity), the Company and the Company Subsidiaries have performed in all material respects their respective covenants thereunder which are presently required thereunder, and neither the Company nor any applicable Company Subsidiary and, to be performed and are not in default under any the knowledge of them, except for defaults or failures to perform which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, no other party to any such Material Contract is in material default thereunder, nor, to the knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “such Material Contract.” . True and complete copies of all of the Material Contracts required to be filed as an exhibit to the Company’s Annual Report on Form 10-K filed on March 27, 2009 or filed or disclosed in any Company SEC Report filed after December 31, 2008 have been made available to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts in any material respects the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure LetterSchedule. No registration rights involving the Company Company’s securities shall survive the consummation of the Merger.
(d) Other than agreements Material Contracts filed as exhibits with the SEC prior to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or date hereof and except as set forth on Section 3.11(d) of the Company Disclosure LetterSchedule, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year), (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per yearperson, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per yearroyalties, (v) including or involving a loan to a director or officer, or (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates that the Company reasonably expects will require aggregate expenditures by the Company and/or any Company Subsidiary in any twelve (12) month period of more than $125,000100,000.
(e) To the knowledge of the CompanyCompany (as limited by the disclosure set forth on Section 3.11(e) of the Company Disclosure Schedule), no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or employee), a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a any Company Subsidiary.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 3 contracts
Samples: Merger Agreement (Covidien PLC), Merger Agreement (Covidien Delaware Corp.), Merger Agreement (Power Medical Interventions, Inc.)
Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a) of the Company Disclosure LetterSchedule, neither the Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form 10-K, the Company’s quarterly reports on Form 10-Q or the Company’s current reports on Form 8-K, in each case, filed by as an exhibit to the Company SEC Reports prior to the date of this AgreementAgreement (a “Material Contract”) that has not been so filed. All of such contracts Each Material Contract required to be filed as an exhibit to (i) the Company’s Annual Report on Form 10-K filed on March 16, 2009 and other agreements are (ii) any Company SEC Report filed after March 16, 2009, is valid, subsisting, in full force and effect, effect and binding upon the Company or the applicable Company Subsidiary, and, and to the knowledge of the Company, binding upon the other parties thereto in accordance with their termsits terms (except to the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and the effect of general principles of equity, regardless of whether such enforceability is considered in a proceeding at Law or in equity), the Company and the Company Subsidiaries have performed in all material respects their respective covenants thereunder which are presently required to be performed thereunder, and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor, to the knowledge of the Company, is any no other party to any such contract or other agreement Material Contract is in material default thereunder, except for defaults which individually or in nor to the aggregate would not reasonably be expected to result in termination knowledge of such agreement or result in a material liability for the Company, nor Company does any condition exist that with notice or lapse of time or both would constitute a material default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of all of the Material Contracts required to be filed as an exhibit to the Company’s Annual Report on Form 10-K filed on March 16, 2009 or any Company SEC Report filed after March 16, 2009 have been made available to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the MergerSchedule.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or Material Contracts and except as set forth on Section 3.11(d) of the Company Disclosure LetterSchedule, neither the Company nor any Company Subsidiary is a party to any executory agreement (i) involving research, development or the license of Proprietary Intellectual Property Rights (as defined in Section 3.12(a)) and presently requiring or that could require payment by or to the Company of royalties exceeding $100,000 per year25,000 in any 12-month period, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Company-Owned Proprietary RightsRights (as defined in Section 3.12(a)), (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts person, other than indemnities, insurance contracts, licenses of Intellectual Property Rights or Company-Owned Proprietary Rights presently not requiring or that could not require payment by or to the Company of royalties exceeding $25,000 in excess of $100,000 per yearany 12-month period, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts (other than off-the-shelf software license fees) exceeding $25,000 in excess of $100,000 per yearany 12-month period, (v) including or involving a loan to a director or officer, or (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000250,000.
(e) To the knowledge of the Company, no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or directorstockholder) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiary.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 3 contracts
Samples: Merger Agreement (Covidien Group S.a.r.l.), Merger Agreement (Covidien PLC), Merger Agreement (Vnus Medical Technologies Inc)
Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a) of the Company Disclosure LetterSchedule, neither the Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form 10-K, the Company’s quarterly reports on Form 10-Q or the Company’s current reports on Form 8-K, in each case, filed by as an exhibit to the Company SEC Reports prior to the date of this AgreementAgreement (a “Material Contract”) that has not been so filed. All of such contracts Except Material Contracts that have expired or terminated by their terms, each Material Contract required to be filed as an exhibit to (i) the Company’s Annual Report on Form 10-K filed on February 3, 2010 and other agreements are (ii) any Company SEC Report filed after February 3, 2010, is valid, subsisting, in full force and effect, effect and binding upon the Company or the applicable Company Subsidiary, and, and to the knowledge of the Company, binding upon the other parties thereto in accordance with their termsits terms (except to the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and the effect of general principles of equity, regardless of whether such enforceability is considered in a proceeding at Law or in equity), the Company and the Company Subsidiaries have performed in all material respects their respective covenants thereunder which are presently required to be performed and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor, to the knowledge of the Company, is any other party to any such contract or other agreement in default thereunderMaterial Contract, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement a Material Contract or result in a material liability for liability, have performed in all material respects their respective covenants thereunder, and to the knowledge of the Company, no other party to any such Material Contract is in default thereunder, nor to the knowledge of the Company does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement a Material Contract or result in a material liability for the Company. Except as set forth on Section 3.11(a) of the Company Disclosure LetterSchedule, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 Material Contract or (ii) create obligations for, or alter the obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of all of the Material Contracts required to be filed as an exhibit to the Company’s Annual Report on Form 10-K filed on February 3, 2010 or any Company SEC Report filed after February 3, 2010 have been made available to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the MergerSchedule.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or Material Contracts and except as set forth on Section 3.11(d) of the Company Disclosure LetterSchedule, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights Intellectual Property (as defined in Section 3.12(a)) and presently requiring or that could require payment by or to the Company of royalties amounts exceeding $100,000 per yearin any 12-month period, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary RightsIntellectual Property, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving person, other than indemnities, insurance contracts, licenses of Intellectual Property presently not requiring or that could not require payment by or to the Company of amounts exceeding $50,000 in excess of $100,000 per yearany 12-month period, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of (other than off-the-shelf software license fees) exceeding $100,000 per yearin any 12-month period, (v) including or involving a loan to a director or officer, or (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000100,000.
(e) To the knowledge of the Company, no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) shareholder and except for compensation for service of as an officer or director) or a Company Subsidiary, any competitor, customer, customer or supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract Material Contract or agreement with the Company or a Company Subsidiary.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 3 contracts
Samples: Merger Agreement (Somanetics Corp), Merger Agreement (Covidien PLC), Merger Agreement (Somanetics Corp)
Contracts and Other Agreements. (a) (i) Except as set forth on Section 3.11(a) of the Company Disclosure LetterSchedule, neither the Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form Company 10-K, the Company’s quarterly reports on Form Company 10-Q Qs or the Company’s current reports on a Form 8-K, in each case, K filed by the Company prior to the date of this Agreement. All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company or the applicable Company Subsidiary, and, to the knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Company and the Company Subsidiaries have performed paid in full or accrued all material respects amounts now due from them thereunder, and have satisfied in full or provided for all of their respective covenants liabilities and obligations thereunder which are presently required to be performed satisfied or provided for and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would not reasonably be expected to result in termination of such an agreement or result in a material liability for the Companyliability, nor, to the knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such an agreement or result in a material liability for the Companyliability, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such an agreement or result in a material liability for the Companyliability. Except as set forth on Section 3.11(a) True and complete copies of all of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts have been made available provided to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the Merger.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000.
(e) To the knowledge of the Company, no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiary.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 2 contracts
Samples: Merger Agreement (Bioenvision Inc), Merger Agreement (Genzyme Corp)
Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a) Schedule 3.15 of the Company Seller Disclosure LetterSchedule, neither the Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed Seller has made available in the Company’s annual reports on Form 10-KElectronic Dataroom correct and complete copies of all Company Contracts, the Company’s quarterly reports on Form 10-Q or the Company’s current reports on Form 8-Kincluding all amendments thereto, in each case, filed by the Company prior to the date of this AgreementBuyer. All of such contracts and other agreements The Company Contracts are valid, subsisting, in full force and effect, binding upon the Company or the applicable Company Subsidiary, and, to the knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Company and the Company Subsidiaries have performed in all material respects their respective covenants thereunder which are presently required to be performed and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor, to the knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) reflected in Schedule 3.15 of the Seller Disclosure Schedule, there have been no amendments, assignments, modifications or supplemental arrangements to or with respect of any Company Disclosure LetterContract. No Target Company is in material breach or default of any Company Contract, none and to the Knowledge of Seller, there is no event which has occurred or existing condition (including the execution and delivery of this Agreement and the consummation of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement) which constitutes or which, shall with notice and/or the passage of time would constitute a material breach, a default or event of default by any of the Target Companies or would cause the acceleration of any obligation of any of the Target Companies, give rise to any right of early termination or cancellation by any party other than the Target Companies or cause the creation of any Lien on any of the assets of the Target Companies (other than Permitted Liens), nor do the Target Companies have knowledge of, and the Target Companies have not received written (or to the Knowledge of the Seller, oral) notice of, or made a claim with respect to, any material breach or default by any other party thereto. Schedule 3.15 of the Seller Disclosure Schedule sets forth a correct and complete list of the following contracts (whether written or oral) to which any of the Target Companies is a party or bound (the “Company Contracts”):
(i) constitute a default under all contracts governing the ten (10) largest customers based on the dollar amount of goods and services sold to such customers during calendar year 2014 for each of Aberdeen and Market Intelligence;
(ii) all contracts governing the Target Companies’ supplier relationships with the ten (10) largest suppliers to the Business (including providers and licensees of data), based on the dollar amount of goods and services purchased from such suppliers during calendar year 2014 for each of Aberdeen and Market Intelligence;
(iii) all bonds, debentures, notes, mortgages, indentures, loans, credit commitments, pledges, security agreements or give rise guarantees and other contracts evidencing, creating or otherwise relating to rights obligations for Indebtedness (other than guarantees by way of endorsement or negotiable instruments in the ordinary course of business) to any party under which any of the agreements referred to Companies is a party or bound and all letters of credit (whether funded or unfunded);
(iv) all existing contracts (other than those described in this Section 3.11 or subparagraphs (i), (ii) create obligations foror (iii) or any of the Company’s Employee Plans) to which any of the Target Companies is a party (i) involving an annual commitment or annual payment by any party thereto of more than $50,000 individually, (ii) which have a fixed term extending more than twelve months from the date hereof and which involve cumulative payments in excess of $50,000, or alter obligations of, (iii) which is likely to result in payment by any party thereto of $50,000 over the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts have been made available to Parent.
(b) Except as provided in the Company SEC Reports filed prior to twelve months following the date hereof, neither in each case individually, or which are otherwise material to the Company nor any Company Subsidiary is Business or the Target Companies taken as a party whole;
(v) contracts relating to any agreement that limits the Leased Real Property;
(vi) capital, operating or restricts the Company, any Company Subsidiary equipment leases or any of their affiliates or successors in competing or engaging in any line of businessconditional sales agreements, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the Merger.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person case involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or 25,000;
(vii) that individually requires employment, collective bargaining, severance, non-competition/non-solicitation (except to the extent part of a standard form agreement which has been made available to Buyer in the Electronic Dataroom), stay bonuses, retention, and similar contracts;
(viii) contracts under which any of the Target Companies is obligated to indemnify or contemplates aggregate expenditures hold harmless, or entitled to indemnification from, any other Person, except for indemnity provisions in contracts entered into in the ordinary course of business;
(ix) contracts between any Target Company and any stockholder, director, partner, officer or employee or other Affiliate of any Target Company, or its Affiliates, including any contracts providing for customer discounts;
(x) any contracts relating to vendor rebates or incentives or customer sales incentives or discounts (to the extent not covered by (ii) above);
(xi) contracts under which the amount payable by any Target Company and/or is dependent on the revenues or income or similar measure of the Business, or in which any Target Company is obligated to pay commissions or similar payments to any Person;
(xii) material license and other similar arrangements in which any Target Company is either licensee or licensor with respect to any Company Subsidiary in Intellectual Property or any twelve month period of more than $125,000.databases;
(exiii) To the knowledge of the Company, no officer Joint Venture or director of the Company has similar agreements;
(whether directly xiv) hedge or indirectly through another entity in which such person has a material interestbroker contracts;
(xv) contracts to loan money or extend credit to any other Person, other than as contracts entered into in the holder ordinary course of less than two percent business; or
(2%) of a class of securities of a publicly traded companyxvi) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiarysettlement agreements.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Harte Hanks Inc)
Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a3.17(a) of the Company Seller Disclosure Letter, neither the Company nor Schedule lists all material contracts to which Seller or any Company Subsidiary of its Subsidiaries is a party and that are included in the Assets or the Assumed Liabilities in accordance with Article II, other than contracts that involve the payment of less than US$20,000 per year and that are not otherwise material to or bound bythe Business. Notwithstanding the foregoing, and neither they nor their properties are subject to, any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K Section 3.17(a) of the SEC Seller Disclosure Schedule lists all contracts to which Seller or any of its Subsidiaries is not disclosed a party and that are included in the Company’s annual reports on Form 10-K, the Company’s quarterly reports on Form 10-Q Assets or the Company’s current reports Assumed Liabilities which could reasonably be expected to have the effect of prohibiting or impairing the ability of Purchaser or any of its Subsidiaries from carrying on Form 8-K, any business or operation now or in each case, filed by the Company prior to future.
(b) Each contract included in the date of this Agreement. All of such contracts and other agreements are valid, subsisting, Assets or Assumed Liabilities is in full force and effecteffect and constitutes a legal, valid and binding upon the Company agreement, enforceable against Seller or the applicable Company Subsidiary, its Affiliate and, to the knowledge of the CompanySeller, binding upon the each other parties thereto party thereto, in accordance with their its terms, and the Company and the Company Subsidiaries have performed in all material respects their respective covenants thereunder which are presently required to be performed and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate as would not reasonably be expected to result in termination a Business Material Adverse Effect. Neither Seller nor any Affiliate of such agreement or result in a material liability for the Company, Seller nor, to the knowledge of the CompanySeller, is any other party to any such contract is in violation or other agreement breach of, or in default thereunderunder, nor has there occurred an event or condition that with the passage of time or giving of notice (or both) would constitute a default under, or permit the termination of, any such contract, except for defaults which individually or in the aggregate as would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Business Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts have been made available to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any personAdverse Effect.
(c) Neither the Company nor any Company Subsidiary is a party Seller has delivered to any agreement obligating the Company to file a registration statement under the Securities Act Purchaser true and complete copies (or if none exist, reasonably complete and accurate written descriptions) of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are contract listed on Section 3.11(c3.17(a) of the Company Seller Disclosure Letter. No registration rights involving the Company shall survive consummation of the MergerSchedule, together with all amendments and supplements thereto.
(d) Other than agreements filed as exhibits Section 3.17(d) of the Seller Disclosure Schedule contains, to the Company’s annual reports on Form 10-K best knowledge of Seller, a complete list of all of the Outstanding Customer Contracts for the provision of products and services of the Business (other than the Telecommunications Applications Services Division or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available Insurance IT Services Division) to Parent or as its customers. The matters set forth on Section 3.11(d3.17(d) of the Company Seller Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right Schedule with respect to Proprietary Rightsthe Outstanding Customer Contracts (including, (iiiwithout limitation, the representations on Section 3.17(d) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000.
(e) To the knowledge of the CompanySeller Disclosure Schedule regarding the contract amounts, no officer or director amounts billed and amounts collected under the Outstanding Customer Contracts as of the Company has (whether directly or indirectly through another entity date hereof) are true, complete and correct in which such person has a all material interestrespects. Seller and its Subsidiaries have performed their respective obligations under the Outstanding Customer Contracts in all material respects and have taken, other than and will take, all actions necessary to discharge their respective future obligations as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiarythey become due.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 1 contract
Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a(i) of the Company Disclosure Letter, neither the Neither Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form Company 10-K, the Company’s quarterly reports on Form Company 10-Q or the Quarterly Reports on Forms 10-Q of Company filed with the SEC covering the first and second fiscal quarters of Company’s current reports 's 2003 fiscal year (such Quarterly Reports on Forms 10-Q, together with the Company 10-Q, the "Company 2003 10-Qs") or a Form 8-K, in each case, K filed by the Company prior to the date of this AgreementCompany. All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company or the applicable Company Subsidiary, and, to the knowledge Knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Company and the Company Subsidiaries have performed paid in full or accrued all material respects amounts now due from them thereunder, and have satisfied in full or provided for all of their respective covenants liabilities and obligations thereunder which are presently required to be performed satisfied or provided for and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the CompanyCompany Material Adverse Effect, nor, to the knowledge Knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, Company Material Adverse Effect nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination a Company Material Adverse Effect. True and complete copies of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) all of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts 2.11 have been provided or made available to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the Merger.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000.
(e) To the knowledge of the Company, no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiary.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 1 contract
Samples: Merger Agreement (Genzyme Corp)
Contracts and Other Agreements. (a) Except as set SCHEDULE 2.9 sets forth on Section 3.11(a) of the Company Disclosure Letter, neither Material Contracts to which the Company nor any Company Subsidiary Seller is a party or to or bound by, and neither they nor their properties are subject to, which any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which assets or properties of the Seller, is not disclosed in bound or subject. The Seller has delivered true and complete copies of all of the Company’s annual reports on Form 10-K, the Company’s quarterly reports on Form 10-Q Material Contracts to Parent or the Company’s current reports on Form 8-K, in each case, filed by the Company prior to the date of this AgreementPurchaser. All of such contracts and other agreements the Material Contracts are valid, subsisting, in full force and effect, effect and binding upon the Company or the applicable Company Subsidiary, Seller and, to the knowledge of the CompanySeller, binding upon the other parties thereto in accordance with their terms, subject to the qualifications that enforcement of the rights and remedies created thereby is subject to (i) bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the Company rights and remedies of creditors and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). The Seller has satisfied in full or provided for all of its liabilities and obligations under such Material Contracts requiring performance prior to the Company Subsidiaries have performed date hereof in all material respects their respective covenants thereunder which are presently required to be performed respects, and are is not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor, to the knowledge of the CompanySeller, is does any condition exist that with notice or lapse of time or both would constitute such a default. To the knowledge of the Seller, no other party to any such contract or other agreement Material Contract is in default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor does any condition exist that with notice or lapse of time or both would constitute such a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Companydefault. Except as set forth on Section 3.11(a) SCHEDULE 2.9 under the heading "Required Consents/Contracts," no approval or consent of any Person is needed for any of the Company Disclosure LetterMaterial Contracts to continue to be in full force and effect. Assuming receipt of all consents set forth under the heading "Required Consents/Contracts" in SCHEDULE 2.9, none all of the execution, delivery, or performance of this Agreement, or the commencement or Seller's rights under such Material Contracts will be in full force and effect following consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts have been made available to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the Merger.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000.
(e) To the knowledge of the Company, no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiary.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 1 contract
Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a) of the Company Disclosure Letter, neither the Neither Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form Company 10-K, the Company’s quarterly reports on Form Company 10-Q or as an exhibit to a registration statement filed under the Company’s current reports on Form 8-KSecurities Act of 1933, in each case, filed by as amended (the Company prior to "Securities Act") within the date of this Agreementlast 12 months. All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company or the applicable Company Subsidiary, and, to the best knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Company and the Company Subsidiaries have performed paid in full or accrued all material respects amounts now due from them thereunder, and have satisfied in full or provided for all of their respective covenants liabilities and obligations thereunder which are presently required to be performed satisfied or provided for and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would could not reasonably be expected to result in termination of such agreement or result in a material liability for the CompanyCompany Material Adverse Effect, nor, to the best knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, except for defaults which individually or in the aggregate would could not reasonably be expected to result in termination of such agreement or result in a material liability for the CompanyCompany Material Adverse Effect, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would could not reasonably be expected to result in termination of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this AgreementMaterial Adverse Effect. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts have been made available to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the Merger.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000.
(e) To the knowledge of the Company, no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiary.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.and
Appears in 1 contract
Contracts and Other Agreements. There are no contracts or agreements that are material contracts (a) Except as set forth on Section 3.11(adefined in Item 601(b)(10)) of the Regulation S-K to which Company Disclosure Letter, neither the Company nor or any Company Subsidiary is a party to or by which Company or any Company Subsidiary is bound by, (the “Company Agreements”) other than (a) those Company Agreements identified on the exhibit indices of Company SEC Reports and neither they nor their properties are subject to, any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form 10-K, the Company’s quarterly reports on Form 10-Q or the Company’s current reports on Form 8-K, in each case, filed (b) those Company Agreements entered into by the Company prior to or a Company Subsidiary after the date of this AgreementAgreement in compliance with Section 4.1. All of such contracts and other agreements are Each Company Agreement is valid, subsisting, in full force and effect, binding upon the effect and is enforceable against Company or the applicable Company Subsidiary, and, to the knowledge of the Company, binding upon the other parties thereto in accordance with their its terms. Neither Company or any Company Subsidiary, and nor to the Company and the Company Subsidiaries have performed knowledge of Company, any other party, is in all material respects their respective covenants thereunder which are presently required to be performed and are not breach of or in default under any provision of themany Company Agreement, except for breaches or defaults or failures which have not had and are not reasonably likely to perform which have, individually or in the aggregate aggregate, a Company Material Adverse Effect. To Company’s knowledge, no condition or circumstance exists which would not reasonably be expected to result in termination constitute a default of such agreement or result in a material liability for the Company, nor, to the knowledge of the Company, is provision under any other party to any such contract or other agreement in default thereunderCompany Agreement, except for defaults which have not had, and are not reasonably likely to have, individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Companyaggregate, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this AgreementMaterial Adverse Effect. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of any Company Agreements listed on the Material Contracts Company Disclosure Schedule pursuant to this Section 2.11 and of unredacted copies of any Company Agreements filed with the SEC pursuant to a confidential treatment request have been made available provided to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the Merger.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000.
(ea) To the knowledge of the Company, no executive officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) % of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or directorstockholder) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company SubsidiaryAgreement.
(fb) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 1 contract
Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a3.17(a) of the Company Seller Disclosure Letter, neither the Company nor any Company Schedule lists (i) all contracts to which Valley or a Sold Subsidiary is a party or that otherwise are included in the Acquired Assets or the Assumed Liabilities, other than contracts that involve the payment of less than $50,000 per year and are not otherwise material to or bound bythe Acquired Business, and neither they nor their properties are subject to, any contract or other agreement than purchase orders entered into in the ordinary course of business (contracts required to be disclosed listed pursuant to this clause (i) are “Material Contracts”), and (ii) all contracts to which Valley or a Sold Subsidiary is a party or that otherwise will or may be binding on the Acquired Business after the Closing, that contain any provision or covenant that prohibit or materially limit the ability of Seller or any of its Affiliates (including any Sold Subsidiaries) to engage in a Form 10-Kany business activity or compete with any Person or prohibit or materially limit the ability of any Person to compete with Seller or any of its Affiliates.
(b) Each Material Contract, Form 10-Q or Form 8-K of the SEC which is not disclosed each other contract included in the Company’s annual reports on Form 10-K, the Company’s quarterly reports on Form 10-Q Acquired Assets or the Company’s current reports on Form 8-K, in Assumed Liabilities and each case, filed by the Company prior other contract to the date of this Agreement. All of such contracts and other agreements are valid, subsisting, which any Sold Subsidiary is a party is in full force and effecteffect and constitutes a legal, valid and binding upon the Company or agreement, enforceable against the applicable Company Subsidiary, Seller or Sold Subsidiary and, to the knowledge of the CompanySellers, binding upon the each other parties thereto party thereto, in accordance with their its terms, and the Company and the Company Subsidiaries have performed in all material respects their respective covenants thereunder which are presently required to be performed and are not in default under any of themeach case, except for defaults or failures to perform which individually or in the aggregate would as could not reasonably be expected to result in termination a Business Material Adverse Effect. Neither Sellers nor any Affiliate of such agreement or result in a material liability for the Company, Sellers nor, to the knowledge of the CompanySellers, is any other party to any such contract is in violation or other agreement breach of, or in default thereunderunder, except for defaults which individually nor has there occurred an event or condition that with the passage of time or giving of notice (or both) would constitute a default under, or permit the termination of, any such contract, except, in the aggregate would each case, as could not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Business Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts have been made available to Parent.
(b) Except as provided in the Company SEC Reports filed prior to the date hereof, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any personAdverse Effect.
(c) Neither the Company nor any Company Subsidiary is a party Sellers have made available to any agreement obligating the Company to file a registration statement under the Securities Act Purchaser true and complete copies (or if none exist, reasonably complete and accurate written descriptions) of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are contract listed on Section 3.11(c3.17(a) of the Company Seller Disclosure Letter. No registration rights involving the Company shall survive consummation of the MergerSchedule, together with all amendments and supplements thereto.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000.
(e) To the knowledge of the Company, no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiary.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.
Appears in 1 contract
Samples: Purchase Agreement (Advanced Accessory Holdings Corp)
Contracts and Other Agreements. (a) Except as set forth on Section 3.11(a) of the Company Disclosure Letter, neither the Neither Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form Company 10-K, the Company’s quarterly reports on Form Company 10-Q or as an exhibit to a registration statement filed under the Company’s current reports on Form 8-KSecurities Act of 1933, in each case, filed by as amended (the Company prior to "Securities Act") within the date of this Agreementlast 12 months. All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company or the applicable Company Subsidiary, and, to the best knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Company and the Company Subsidiaries have performed paid in full or accrued all material respects amounts now due from them thereunder, and have satisfied in full or provided for all of their respective covenants liabilities and obligations thereunder which are presently required to be performed satisfied or provided for and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would could not reasonably be expected to result in termination of such agreement or result in a material liability for the CompanyCompany Material Adverse Effect, nor, to the best knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, except for defaults which individually or in the aggregate would could not reasonably be expected to result in termination of such agreement or result in a material liability for the CompanyCompany Material Adverse Effect, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would could not reasonably be expected to result in termination a Company Material Adverse Effect. True and complete copies of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) all of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts 2.11 have been provided or made available to Parent.
(b) Except as provided Other than those contracts disclosed in the Company SEC Reports 10-K, the Company 10-Q or as exhibits to a registration statement filed prior to under the date hereofSecurities Act, neither the Company nor any Company Subsidiary is a party to any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) of the Company Disclosure Letter. No registration rights involving the Company shall survive consummation of the Merger.
(d) Other than agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary of milestone payments or royalties involving amounts in excess of $100,000 per year, (v) including or involving a loan to a director or officer, (vi) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective Time, or (vii) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000.
(e) To the best knowledge of the Company, no executive officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) % of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or directorstockholder) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiary.
(fe) Neither SECTION 2.11(e) of the Company nor any Disclosure Schedule lists all real property owned by Company Subsidiary is party or a Company Subsidiary. The Company or Company Subsidiary, as the case may be, owns good and marketable title to any interest rate, equity or other swap or derivative instrumentsuch property.
Appears in 1 contract
Samples: Merger Agreement (Genzyme Corp)
Contracts and Other Agreements. (ai) Except as set forth on Section 3.11(a) of the Company Disclosure Letter, neither the Neither Company nor any Company Subsidiary is a party to or bound by, and neither they nor their properties are subject to, any contract or other agreement required to be disclosed in a Form 10-K, Form 10-Q or Form 8-K of the SEC which is not disclosed in the Company’s annual reports on Form Company 10-K, the Company’s quarterly reports on Form Company 10-Q or the Quarterly Reports on Forms 10-Q of Company filed with the SEC covering the first and second fiscal quarters of Company’s current reports 2003 fiscal year (such Quarterly Reports on Forms 10-Q, together with the Company 10-Q, the “Company 2003 10-Qs”) or a Form 8-K, in each case, K filed by the Company prior to the date of this AgreementCompany. All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company or the applicable Company Subsidiary, and, to the knowledge Knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Company and the Company Subsidiaries have performed paid in full or accrued all material respects amounts now due from them thereunder, and have satisfied in full or provided for all of their respective covenants liabilities and obligations thereunder which are presently required to be performed satisfied or provided for and are not in default under any of them, except for defaults or failures to perform which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the CompanyCompany Material Adverse Effect, nor, to the knowledge Knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination of such agreement or result in a material liability for the Company, Company Material Adverse Effect nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except for defaults which individually or in the aggregate would not reasonably be expected to result in termination a Company Material Adverse Effect. True and complete copies of such agreement or result in a material liability for the Company. Except as set forth on Section 3.11(a) all of the Company Disclosure Letter, none of the execution, delivery, or performance of this Agreement, or the commencement or consummation of Offer, the Merger, or the other transactions contemplated by this Agreement, shall (i) constitute a default under or give rise to rights to any party under any of the agreements referred to in this Section 3.11 or (ii) create obligations for, or alter obligations of, the Company, any Company Subsidiary, Parent, Sub or the Surviving Corporation in addition to those obligations of the Company or a Company Subsidiary in effect on the date of this Agreement. The contracts and other agreements referred to in this Section 3.11 are collectively referred to as “Material Contracts,” and each, a “Material Contract.” True and complete copies of the Material Contracts 2.11 have been provided or made available to Parent.
(bii) Except All of the Select Agreements (as provided defined below) are valid, subsisting, in full force and effect, binding upon Company or the applicable Company Subsidiary, and, to the Knowledge of Company, binding upon the other parties thereto in accordance with their terms, and Company and the Company SEC Reports filed prior Subsidiaries have paid in full or accrued substantially all amounts now due from them thereunder, and have satisfied in full or provided for all of their liabilities and obligations thereunder which are presently required to be satisfied or provided for and are not in default under any of them other than defaults that could not reasonably be expected to result in a material liability or termination of the Agreement, nor, to the date hereofKnowledge of Company, neither the Company nor is any Company Subsidiary is a other party to any such contract or other agreement in default thereunder, nor does any condition exist that limits with notice or restricts the Companylapse of time or both would constitute a default thereunder, any Company Subsidiary other than defaults that could not reasonably be expected to result in a material liability or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any person.
(c) Neither the Company nor any Company Subsidiary is a party to any agreement obligating the Company to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), which filing has not yet been made, and the Company is in material compliance with each such agreement, all of which are listed on Section 3.11(c) termination of the Company Disclosure LetterAgreement. No registration rights involving the Company shall survive consummation of the Merger.
(d) Other than “Select Agreements” mean any and all agreements filed as exhibits to the Company’s annual reports on Form 10-K or the Company’s quarterly reports on Form 10-Q (including any incorporated therein by reference), unredacted copies of which have previously been provided or otherwise made available to Parent or as set forth on Section 3.11(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is a party to any agreement (i) involving research, development or the license of Proprietary Rights (as defined in Section 3.12(a)) requiring payment of royalties exceeding $100,000 per year, (ii) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (iii) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person involving amounts in excess of $100,000 per year, (iv) providing for the payment or receipt by the Company or any Company Subsidiary and any of milestone payments the following entities or royalties involving amounts their affiliates (or either’s successors in excess of $100,000 per yearinterest) is a party: (1) Schering AG, (v2) including or involving a loan to a director or officerBoehringer Ingelheim Pharma KG (3) Bioenvision, Inc., (vi4) that involves a financial advisor or investment bank and provides for the payment of potential fees or rights of first refusal or similar rights to act in any capacity after the Effective TimeXxxxx XX, (5) Millennium Pharmaceuticals, Inc, or (vii6) that individually requires or contemplates aggregate expenditures by the Company and/or any Company Subsidiary in any twelve month period of more than $125,000.
(e) To the knowledge of the Company, no officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder and except for such compensation for service as an officer or director consistent with that which is disclosed in Company SEC Reports) and except for compensation for service of an officer or director) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any person that is currently a party to any material contract or agreement with the Company or a Company Subsidiary.
(f) Neither the Company nor any Company Subsidiary is party to any interest rate, equity or other swap or derivative instrument.British Technology Group Ltd.
Appears in 1 contract
Samples: Merger Agreement (Ilex Oncology Inc)
