Contracts; Indebtedness. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each Contract to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets, and which falls within any of the following categories: (i) Contracts between the Company or any Company Subsidiary and any of the 10 largest customers of such Persons (determined on the basis of aggregate revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters ended September 25, 2016); (ii) Contracts between the Company or any Company Subsidiary and any (A) of the 10 largest suppliers (other than a licensor) that are material, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services (determined on the basis of aggregate payments recognized by the Company and the Company Subsidiaries during the four fiscal quarters ended September 25, 2016) and (B) sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Company Products or Company IP; (iii) except for the Contracts disclosed in clauses (i) or (ii) above, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or more or (B) aggregate payments or potential aggregate payments after the date hereof of $200,000 or more; (iv) Contracts providing for any contingent payments by the Company or any Company Subsidiary exceeding $100,000 in any one case; (v) Contracts that (A) restrict the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, from competing or engaging in any material respect in any line of business or with any Person or in any geographic area or (B) require any material benefit be granted to a Third Party, or material right be lost by the Company, its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, or the successors to any of the foregoing, as a result of competing in or engaging in any line of business or with any Person or in any geographic area; (vi) Contracts that grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP; (vii) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP; (viii) Contracts that (A) contain any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, (B) grant “most favored nation” rights, (C) grant material guaranteed availability of supply of Company Products for a period greater than twenty-four (24) months, (D) guarantee as to foundry capacity or priority or (E) guarantee prices for a period of greater than twenty-four (24) months; (ix) Contracts pursuant to which the Company or any Company Subsidiary has agreed to provide source code of Company Proprietary Software to be put in escrow or to be provided to any Third Party (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipient); (x) Company IP Contracts, except for Contracts for Standard Software or where Company or its Subsidiaries grant non-exclusive licenses relating to Company Products in the ordinary course of business of the Company and its Subsidiaries; (xi) Leases, subleases, occupancy agreements and other agreements (whether of real or personal property) to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $100,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; (xii) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty; (xiii) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice; (xiv) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business); (xv) Contracts under which the Company or any Company Subsidiary have any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,000; (xvi) any Contracts (A) (1) between the Company or any Company Subsidiary and any Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement; (xvii) partnership, joint venture or other similar Contract or arrangement material to the Company and the Company Subsidiaries, taken as a whole; (xviii) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently or jointly, by or for the Company or any Company Subsidiary; (xix) collective bargaining agreement or other Contract with any labor union; (xx) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate; (xxi) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability; (xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment; (xxiii) Contract entered into since January 1, 2014 in connection with the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment of more than $100,000; (xxiv) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of the Company or any Company Subsidiary pursuant to the provisions of a Contract entered into by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; and (xxv) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC). (b) Each Contract of the type described in Section 3.14(a) is referred to herein as a “Company Material Contract”. Accurate and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the SEC. (c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) none of the Company or any Company Subsidiary knows of, or has received written notice of, any violation or default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract. (d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d) shall include any stockholder of the Company that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is involved, directly or indirectly, in any material business arrangement or other material relationship with the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (GigPeak, Inc.)
Contracts; Indebtedness. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each Contract to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets, and which falls within any of the following categories:
(i) Contracts between the Company or any Company Subsidiary and any of the 10 largest licensees or other customers of such Persons (determined on the basis of aggregate revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 20162011);
(ii) Contracts between the Company or any Company Subsidiary and any (A) Third Party pursuant to which the Company or any Company Subsidiary has acquired or is authorized to use any Third Party Intellectual Property (other than Standard Software), (B) of the 10 largest suppliers (other than a licensor) that are material, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services (determined on the basis of aggregate payments recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 20162011) and (BC) any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Company Products or Company IPIP (provided, however, that for listing purposes under this subsection (C), the foregoing Contracts do not need to include Contracts on Standard Forms, so long as all Contracts described by this subsection (C) constitute Material Contracts whether or not executed on Standard Forms);
(iii) except for the Contracts disclosed in clauses (i) or (ii) above, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or more or (B) aggregate payments or potential aggregate payments after the date hereof of $200,000 or moremore (provided however, that such thresholds shall be $200,000 and $400,000, respectively, with respect to the purchase of Company Products in the ordinary course of business pursuant to Standard Forms);
(iv) Contracts providing for any contingent payments by the Company or any Company Subsidiary exceeding $100,000 in any one case;
(v) Contracts that (A) restrict the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, Affiliates from competing or engaging in any material respect in any line of business of the Company and its Subsidiaries or with any Person or in any geographic area or (B) require any material benefit be granted to a Third Party, or material right be lost by the Company, its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, or the successors to any of the foregoingeither, as a result of competing in or engaging in any line of business of the Company and its Subsidiaries, or with any Person or in any geographic area;
(vi) Contracts that (A) grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP;
, (viiB) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP;
, (viii) Contracts that (AC) contain any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, (BD) grant “most favored nation” rights, (CE) grant material guaranteed availability of supply of Company Products for a period greater than twenty-four (24) months, (DF) grant exclusive rights to purchase any Company Products, including products produced through foundry services, (G) guarantee as to foundry capacity or priority priority, or (EH) guarantee prices for a period of greater than twenty-four (24) months;
(ixvii) Contracts pursuant to which the Company or any Company Subsidiary has agreed to provide source code of Company Proprietary Software to be put in escrow or to be provided to any Third Party (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipient);
(xviii) Company IP Contracts, except for Contracts for Standard Software or where Company or its Subsidiaries grant non-exclusive licenses relating to Company Products in the ordinary course of business of the Company and its Subsidiaries;
(xiix) [reserved]
(x) Leases, subleases, occupancy agreements and other agreements (whether of real or personal property) to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $100,000 or more or (B) aggregate payments after the date hereof of $100,000 or more;
(xiixi) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty;
(xiiixii) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice;
(xivxiii) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business);
(xvxiv) Contracts under which the Company or any Company Subsidiary have any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,000;
(xvixv) any Contracts (A) (1) between the Company or any Company Subsidiary and any Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement;
(xviixvi) partnership, joint venture or other similar Contract or arrangement material to the Company and the Company Subsidiaries, taken as a whole;
(xviiixvii) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently or jointly, by or for the Company or any Company Subsidiary;
(xixxviii) collective bargaining agreement or other Contract with any labor union;
(xxxix) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate;
(xxixx) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability;
(xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment;
(xxiiixxi) Contract entered into since January 1, 2014 in the last three years in connection with the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment of more than $100,000;
(xxivxxii) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of the Company or any Company Subsidiary pursuant to the provisions of a Contract entered into by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; and
(xxvxxiii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(b) Each Contract of the type described in Section 3.14(a) is referred to herein as a “Company Material Contract”. .” Accurate and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the SEC.
(c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) to the Knowledge of the Company, none of the Company or any Company Subsidiary knows of, or has received written notice of, any violation or default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.
(d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d) shall include any stockholder of the Company that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is involved, directly or indirectly, in any material business arrangement or other material relationship with the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Integrated Device Technology Inc)
Contracts; Indebtedness. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth forth, as of the date of this Agreement, an accurate and complete list of each Contract Contract, other than any Company Employee Plan, to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assetsassets (in each case, other than Contracts between or among the Company and any of the Company Subsidiaries), and which falls within any of the following categories:
(i) Contracts between the Company or any Company Subsidiary and any of the 10 largest customers Significant Customers pursuant to which Company derived revenue from the sales of such Persons (determined on the basis of aggregate revenues recognized by the Company Products, but excluding purchase orders and the Company Subsidiaries during the four fiscal quarters ended September 25, 2016)similar ordinary course ordering documents;
(ii) Contracts between the Company or any Company Subsidiary and any (A) of the 10 largest suppliers (other than a licensor) that are materialany Significant Supplier pursuant to which Company made payments, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services (determined on the basis of aggregate payments recognized by the Company but excluding purchase orders and the Company Subsidiaries during the four fiscal quarters ended September 25, 2016) and (B) sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Company Products or Company IPsimilar ordinary course ordering documents;
(iii) except for the Contracts disclosed in clauses (i) or (ii) above, each Contract that involves performance of services expressly providing for currently committed payments to, or delivery of goodsreceipts by, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either of (A) recurring annual payments amounts after the date hereof of $100,000 750,000 or more more, or (B) aggregate payments or potential aggregate payments amounts after the date hereof of $200,000 1,500,000 or more;
(iv) Contracts providing for that contain any contingent payments by the Company or any Company Subsidiary exceeding $100,000 in any one case;
(v) Contracts that (A) restrict express restrictions, prohibiting the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, from competing or engaging in any material respect in any line of business or with any Person or in any geographic area or (B) require any material benefit be granted to a Third Party, or material right be lost by the Company, ’s or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, or the successors to any of the foregoing, as a result of competing in or engaging in any line of business or with any Person or in any geographic areaSubsidiaries’ business;
(viv) Contracts that grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP;
(viivi) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP;
(viiivii) Contracts that (A) contain any provision that requires the purchase of all or a given material portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, (B) grant another Person “most favored nationpricing” rights, (C) grant material guaranteed availability of supply of Company Products for a period greater than twentythirty-four six (2436) months, (D) guarantee as to foundry capacity or priority or (E) guarantee prices for a period of greater than twentythirty-four six (2436) months;
(ixviii) Contracts pursuant to which the Company or any Company Subsidiary has agreed to provide source code of Company Proprietary Software to be put in escrow or to be provided to any Third Party similar arrangement (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipient);
(xix) Company IP Contracts, except for Contracts (A) for Standard Software or other Contract for the use of Software or other Technology where the termination or expiration of such Contract would not reasonably be expected to materially and adversely affect the Company’s ability to manufacture, sell, and support the Company Products, (B) where Company or its Subsidiaries grant non-exclusive licenses to resellers, distributors, or other channel partners relating to the use or distribution of the Company Products in each case, in the ordinary course of business of the Company and its Subsidiaries, (C) rights granted to employees and contractors to use Company IP in connection with providing services for Company, and rights granted by employees and contractors in and to work product produced by such employees and contractors, (D) licenses granted incidental to the purchase of products, which licenses are limited to exercise of the applicable rights to the extent necessary to use the purchased products, and (E) non-disclosure agreements entered into in the ordinary course of business and consistent with past practice;
(xix) Leases, subleases, occupancy agreements and other agreements (whether of real or personal property) to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof in excess of $100,000 or more or (B) aggregate payments after the date hereof of $100,000 or moreduring calendar year ended December 31, 2018;
(xiixi) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty1,000,000;
(xiiixii) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practiceLiens;
(xivxiii) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any material loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (ix) extensions of credit or advancement of funds in the ordinary course of business consistent with past practice and (iiy) investments in marketable securities in the ordinary course of business);
(xvxiv) Contracts under which the Company or any Company Subsidiary have any material obligations which have not been satisfied or performed (other than excluding, for the avoidance of doubt, confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,0001,000,000;
(xvixv) any Contracts (A) (1) between the Company or any Company Subsidiary and any Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement;
(xviixvi) partnership, joint venture or other similar Contract or arrangement material to the Company and the Company Subsidiaries, taken as a whole;
(xviiixvii) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently other than Contracts, the ownership, licensing, and confidentiality sections of which do not materially differ in substance from the Company’s standard forms of At-Will Employment, Confidentiality and Invention Assignment Agreement, or jointlycontractor agreements, by or for as applicable (copies of which forms has been made available to the Company or any Company SubsidiaryParent);
(xixxviii) collective bargaining agreement or other Contract with any labor union;
(xxxix) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate;
(xxi) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability;
(xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment;
(xxiii) Contract entered into since January 1, 2014 in connection with 2016 providing for the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment obligation in excess of more than $100,000;
(xxiv) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of the Company or any Company Subsidiary pursuant to the provisions of a Contract entered into by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; and
(xxvxx) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company (other than those Contracts described in Item 601(b)(10)(iii) of Regulation S-K of the SEC).
(b) Each Contract of the type described in required to be disclosed on Section 3.14(a) of the Company Disclosure Schedule is referred to herein as a “Company Material Contract”. Accurate Materially accurate and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the SEC.
(c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) none of the Company or any Company Subsidiary knows of, or has received written notice of, of any material violation or default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract Contract, and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has to the Knowledge of the Company, no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.
(d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d) shall include any stockholder of the Company that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is involved, directly or indirectly, in any material business arrangement or other material relationship with the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
Appears in 1 contract
Contracts; Indebtedness. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth forth, as of the date of this Agreement, an accurate and complete list of each Contract Contract, other than any Company Employee Plan, to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assetsassets (in each case, other than Contracts between or among the Company and any of the Company Subsidiaries), and which falls within any of the following categories:
(i) Contracts between the Company or any Company Subsidiary and any of the 10 largest customers Significant Customers pursuant to which Company derived revenue from the sales of such Persons (determined on the basis of aggregate revenues recognized by the Company Products, but excluding purchase orders and the Company Subsidiaries during the four fiscal quarters ended September 25, 2016)similar ordinary course ordering documents;
(ii) Contracts between the Company or any Company Subsidiary and any (A) of the 10 largest suppliers (other than a licensor) that are materialany Significant Supplier pursuant to which Company made payments, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services (determined on the basis of aggregate payments recognized by the Company but excluding purchase orders and the Company Subsidiaries during the four fiscal quarters ended September 25, 2016) and (B) sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Company Products or Company IPsimilar ordinary course ordering documents;
(iii) except for the Contracts disclosed in clauses (i) or (ii) above, each Contract that involves performance of services expressly providing for currently committed payments to, or delivery of goodsreceipts by, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either of (A) recurring annual payments amounts after the date hereof of $100,000 750,000 or more more, or (B) aggregate payments or potential aggregate payments amounts after the date hereof of $200,000 1,500,000 or more;
(iv) Contracts providing for that contain any contingent payments by the Company or any Company Subsidiary exceeding $100,000 in any one case;
(v) Contracts that (A) restrict express restrictions, prohibiting the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, from competing or engaging in any material respect in any line of business or with any Person or in any geographic area or (B) require any material benefit be granted to a Third Party, or material right be lost by the Company, ’s or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, or the successors to any of the foregoing, as a result of competing in or engaging in any line of business or with any Person or in any geographic areaSubsidiaries’ business;
(viv) Contracts that grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP;
(viivi) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP;
(viiivii) Contracts that (A) contain any provision that requires the purchase of all or a given material portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, (B) grant another Person “most favored nationpricing” rights, (C) grant material guaranteed availability of supply of Company Products for a period greater than twentythirty-four six (2436) months, (D) guarantee as to foundry capacity or priority or (E) guarantee prices for a period of greater than twentythirty-four six (2436) months;
(ixviii) Contracts pursuant to which the Company or any Company Subsidiary has agreed to provide source code of Company Proprietary Software to be put in escrow or to be provided to any Third Party similar arrangement (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipient);
(xix) Company IP Contracts, except for Contracts (A) for Standard Software or other Contract for the use of Software or other Technology where the termination or expiration of such Contract would not Table of Contents reasonably be expected to materially and adversely affect the Company’s ability to manufacture, sell, and support the Company Products, (B) where Company or its Subsidiaries grant non-exclusive licenses to resellers, distributors, or other channel partners relating to the use or distribution of the Company Products in each case, in the ordinary course of business of the Company and its Subsidiaries, (C) rights granted to employees and contractors to use Company IP in connection with providing services for Company, and rights granted by employees and contractors in and to work product produced by such employees and contractors, (D) licenses granted incidental to the purchase of products, which licenses are limited to exercise of the applicable rights to the extent necessary to use the purchased products, and (E) non-disclosure agreements entered into in the ordinary course of business and consistent with past practice;
(xix) Leases, subleases, occupancy agreements and other agreements (whether of real or personal property) to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof in excess of $100,000 or more or (B) aggregate payments after the date hereof of $100,000 or moreduring calendar year ended December 31, 2018;
(xiixi) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty1,000,000;
(xiiixii) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practiceLiens;
(xivxiii) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any material loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (ix) extensions of credit or advancement of funds in the ordinary course of business consistent with past practice and (iiy) investments in marketable securities in the ordinary course of business);
(xvxiv) Contracts under which the Company or any Company Subsidiary have any material obligations which have not been satisfied or performed (other than excluding, for the avoidance of doubt, confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,0001,000,000;
(xvixv) any Contracts (A) (1) between the Company or any Company Subsidiary and any Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement;
(xviixvi) partnership, joint venture or other similar Contract or arrangement material to the Company and the Company Subsidiaries, taken as a whole;
(xviiixvii) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently other than Contracts, the ownership, licensing, and confidentiality sections of which do not materially differ in substance from the Company’s standard forms of At-Will Employment, Confidentiality and Invention Assignment Agreement, or jointlycontractor agreements, by or for as applicable (copies of which forms has been made available to the Company or any Company SubsidiaryParent);
(xixxviii) collective bargaining agreement or other Contract with any labor union;
(xxxix) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate;
(xxi) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability;
(xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment;
(xxiii) Contract entered into since January 1, 2014 in connection with 2016 providing for the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment obligation in excess of more than $100,000;
; and Table of Contents (xxiv) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of the Company or any Company Subsidiary pursuant to the provisions of a Contract entered into by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; and
(xxvxx) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company (other than those Contracts described in Item 601(b)(10)(iii) of Regulation S-K of the SEC).
(b) Each Contract of the type described in required to be disclosed on Section 3.14(a) of the Company Disclosure Schedule is referred to herein as a “Company Material Contract”. Accurate Materially accurate and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the SEC.
(c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) none of the Company or any Company Subsidiary knows of, or has received written notice of, of any material violation or default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract Contract, and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has to the Knowledge of the Company, no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.
(d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d) shall include any stockholder of the Company that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is involved, directly or indirectly, in any material business arrangement or other material relationship with the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
Appears in 1 contract
Contracts; Indebtedness. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each Contract to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets, and which falls within any of the following categories:
(i) Contracts between the Company or any Company Subsidiary and any of the 10 largest licensees or other customers of such Persons (determined on the basis of aggregate revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 20162011);
(ii) Contracts between the Company or any Company Subsidiary and any (A) Third Party pursuant to which the Company or any Company Subsidiary has acquired or is authorized to use any Third Party Intellectual Property (other than Standard Software), (B) of the 10 largest suppliers (other than a licensor) that are material, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services (determined on the basis of aggregate payments recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 20162011) and (BC) any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Company Products or Company IPIP (provided, however, that for listing purposes under this subsection (C), the foregoing Contracts do not need to include Contracts on Standard Forms, so long as all Contracts described by this subsection (C) constitute Material Contracts whether or not executed on Standard Forms);
(iii) except for the Contracts disclosed in clauses (i) or (ii) above, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or more or (B) aggregate payments or potential aggregate payments after the date hereof of $200,000 or moremore (provided however, that such thresholds shall be $200,000 and $400,000, respectively, with respect to the purchase of Company Products in the ordinary course of business pursuant to Standard Forms);
(iv) Contracts providing for any contingent payments by the Company or any Company Subsidiary exceeding $100,000 in any one case;
(v) Contracts that (A) restrict the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, Affiliates from competing or engaging in any material respect in any line of business of the Company and its Subsidiaries or with any Person or in any geographic area or (B) require any material benefit be granted to a Third Party, or material right be lost by the Company, its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, or the successors to any of the foregoingeither, as a result of competing in or engaging in any line of business of the Company and its Subsidiaries, or with any Person or in any geographic area;
(vi) Contracts that (A) grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP;
, (viiB) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP;
, (viii) Contracts that (AC) contain any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, (BD) grant “most favored nation” rights, (CE) grant material guaranteed availability of supply of Company Products for a period greater than twenty-four (24) months, (DF) grant exclusive rights to purchase any Company Products, including products produced through foundry services, (G) guarantee as to foundry capacity or priority priority, or (EH) guarantee prices for a period of greater than twenty-four (24) months;
(ixvii) Contracts pursuant to which the Company or any Company Subsidiary has agreed to provide source code of Company Proprietary Software to be put in escrow or to be provided to any Third Party (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipient);
(xviii) Company IP Contracts, except for Contracts for Standard Software or where Company or its Subsidiaries grant non-exclusive licenses relating to Company Products in the ordinary course of business of the Company and its Subsidiaries;
(xiix) [reserved]
(x) Leases, subleases, occupancy agreements and other agreements (whether of real or personal property) to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $100,000 or more or (B) aggregate payments after the date hereof of $100,000 or more;
(xiixi) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty;
(xiiixii) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice;
(xivxiii) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business);
(xvxiv) Contracts under which the Company or any Company Subsidiary have any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,000;
(xvixv) any Contracts (A) (1) between the Company or any Company Subsidiary and any Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement;
(xviixvi) partnership, joint venture or other similar Contract or arrangement material to the Company and the Company Subsidiaries, taken as a whole;
(xviiixvii) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently or jointly, by or for the Company or any Company Subsidiary;
(xixxviii) collective bargaining agreement or other Contract with any labor union;
(xxxix) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate;
(xxixx) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability;
(xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment;
(xxiiixxi) Contract entered into since January 1, 2014 in the last three years in connection with the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment of more than $100,000;
(xxivxxii) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of the Company or any Company Subsidiary pursuant to the provisions of a Contract entered into by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; and
(xxvxxiii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(b) Each Contract of the type described in Section 3.14(a) is referred to herein as a “Company Material Contract”. .” Accurate and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the SEC.
(c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) to the Knowledge of the Company, none of the Company or any Company Subsidiary knows of, or has received written notice of, any violation or default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.
(d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d) shall include any stockholder of the Company that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is involved, directly or indirectly, in any material business arrangement or other material relationship with the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
Appears in 1 contract
Contracts; Indebtedness. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each Contract to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets, and which falls within any of the following categories:
(i) Contracts between the Company or any Company Subsidiary and any of the 10 largest licensees or other customers of such Persons (determined on the basis of aggregate revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 20162013);
(ii) Contracts between the Company or any Company Subsidiary and any (A) Third Party pursuant to which the Company or any Company Subsidiary has acquired or is authorized to use any Third Party Intellectual Property (other than Standard Software), (B) of the 10 largest suppliers (other than a licensor) that are material, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services (determined on the basis of aggregate payments recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 20162013) and (BC) any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Company Products or Company IPIP (provided, however, that for listing purposes under this subsection (C), the foregoing Contracts do not need to include Contracts on Standard Forms, so long as all Contracts described by this subsection (C) constitute Material Contracts whether or not executed on Standard Forms);
(iii) except for the Contracts disclosed in clauses (i) or (ii) above, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or more or (B) aggregate payments or potential aggregate payments after the date hereof of $200,000 or moremore (provided, however, that such thresholds shall be $200,000 and $400,000, respectively, with respect to the purchase of Company Products in the ordinary course of business pursuant to Standard Forms);
(iv) Contracts providing for any contingent payments by the Company or any Company Subsidiary exceeding $100,000 in any one case;
(v) Contracts that (A) restrict the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, Affiliates from competing or engaging in any material respect in any line of business of the Company and its Subsidiaries or with any Person or in any geographic area or (B) require any material benefit be granted to a Third Party, or material right be lost by the Company, its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, or the successors to any of the foregoingeither, as a result of competing in or engaging in any line of business of the Company and its Subsidiaries, or with any Person or in any geographic area;
(vi) Contracts that (A) grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP;
, (viiB) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP;
, (viii) Contracts that (AC) contain any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, (BD) grant “most favored nation” rights, (CE) grant material guaranteed availability of supply of Company Products for a period greater than twenty-four (24) months, (DF) grant exclusive rights to purchase any Company Products, including products produced through foundry services, (G) guarantee as to foundry capacity or priority priority, or (EH) guarantee prices for a period of greater than twenty-four (24) months;
(ixvii) Contracts pursuant to which the Company or any Company Subsidiary has agreed to provide source code of Company Proprietary Software to be put in escrow or to be provided to any Third Party (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipient);
(xviii) Company IP Contracts, except for Contracts for Standard Software or where Company or its Subsidiaries grant non-exclusive licenses relating to Company Products in the ordinary course of business of the Company and its Subsidiaries;
(xiix) [reserved]
(x) Leases, subleases, occupancy agreements and other agreements (whether of real or personal property) to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $100,000 or more or (B) aggregate payments after the date hereof of $100,000 or more;
(xiixi) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty;
(xiiixii) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice;
(xivxiii) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business);
(xvxiv) Contracts under which the Company or any Company Subsidiary have any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,000;
(xvixv) any Contracts (A) (1) between the Company or any Company Subsidiary and any Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement;
(xviixvi) partnership, joint venture or other similar Contract or arrangement material to the Company and the Company Subsidiaries, taken as a whole;
(xviiixvii) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently or jointly, by or for the Company or any Company Subsidiary;
(xixxviii) collective bargaining agreement or other Contract with any labor union;
(xxxix) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate;
(xxixx) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability;
(xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment;
(xxiiixxi) Contract entered into since January 1, 2014 in the last three years in connection with the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment of more than $100,000;
(xxivxxii) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of the Company or any Company Subsidiary pursuant to the provisions of a Contract entered into by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; and
(xxvxxiii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(b) Each Contract of the type described in Section 3.14(a) is referred to herein as a “Company Material Contract”. Accurate and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the SEC.
(c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) to the Knowledge of the Company, none of the Company or any Company Subsidiary knows of, or has received written notice of, any violation or default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.
(d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d) shall include any stockholder of the Company that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is involved, directly or indirectly, in any material business arrangement or other material relationship with the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
(e) None of the Company or any of its Subsidiaries entered into any indemnification, employment or other similar Contract with any past or present directors or officers of the Company or any of its Subsidiaries prior to January 1, 2011.
Appears in 1 contract
Contracts; Indebtedness. (a) Section 3.14(a3.13(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each Contract to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets, and which falls within any of the following categories:
(i) any joint venture, partnership, strategic alliance, limited liability or other similar Contract related to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company or any Company Subsidiary owns any interest, or any Contract involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any other Person;
(ii) Contracts (other than purchase orders) between the Company or any Company Subsidiary and any of the 10 ten largest customers of such Persons (determined on the basis of aggregate revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 20162015);
(iiiii) Contracts (other than purchase orders) between the Company or any Company Subsidiary and any (A) of the 10 ten largest suppliers (other than a licensor) that are material, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services such Persons (determined on the basis of aggregate payments revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 2016) and (B) sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Company Products or Company IP2015);
(iv) the most recent purchase order, to the extent applicable, for each customer referenced in clause (ii) above, and any outstanding purchase orders in excess of $100,000 with each customer and supplier referenced in clauses (ii) or (iii) above;
(v) except for the Contracts disclosed in clauses (iii) or (iiiii) above, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 250,000 or more or (B) aggregate payments or potential aggregate payments after the date hereof of $200,000 1,000,000 or more;
(iv) Contracts providing for any contingent payments by the Company or any Company Subsidiary exceeding $100,000 in any one case;
(vvi) Contracts that (A) restrict or purport to restrict the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, from competing or engaging in any material respect in any line of business or with any Person or in any geographic area or (B) require during any material benefit be granted to a Third Party, or material right be lost by the Company, its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any period of their respective Affiliates, or the successors to any of the foregoing, as a result of competing in or engaging in any line of business or with any Person or in any geographic areatime;
(vivii) Contracts that (A) grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP;
Products, (viiB) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP;
, (viii) Contracts that (AC) contain any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, or (BD) grant “most favored nation” rights, (C) grant material guaranteed availability of supply of Company Products for a period greater than twenty-four (24) months, (D) guarantee as to foundry capacity or priority or (E) guarantee prices for a period of greater than twenty-four (24) months;
(ixviii) Leases, subleases, occupancy agreements or other Contracts pursuant concerning the use, occupancy, management or operation of, or evidencing any interests in, any real property to which the Company or any Company Subsidiary has agreed to provide source code is party (including all Lease Agreements set forth on Section 3.2(b) of the Company Proprietary Software to be put in escrow or to be provided to any Third Party (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipientDisclosure Schedule);
(x) Company IP Contracts, except for Contracts for Standard Software or where Company or its Subsidiaries grant non-exclusive licenses relating to Company Products in the ordinary course of business of the Company and its Subsidiaries;
(xiix) Leases, subleases, occupancy agreements and other agreements (whether of real or concerning personal property) property to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $100,000 250,000 or more or (B) aggregate payments after the date hereof of $100,000 1,000,000 or more;
(xiix) Contracts that contain obligations of the Company or any Company Subsidiary secured by a Lien (other than a Permitted Lien), or interest rate or currency hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of the Company and the Company Subsidiaries under such Contract are in excess of $250,000;
(xi) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 250,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty;
(xiii) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice;
(xiv) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business);
(xvxii) Contracts under which the Company or any Company Subsidiary have any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business business, property or assets, or any capital stock or Equity Interest of any Person (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,000250,000;
(xvixiii) any Contracts (A) (1) between the Company or any Company Subsidiary and any Contract with a Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurementAuthority;
(xviixiv) partnershipCompany IP Contracts (excluding any licenses to commercially available “off-the-shelf” Software, joint venture or other similar Contract or arrangement material non-exclusive licenses granted to customers in the ordinary course of business and confidentiality and intellectual property assignment agreements entered into by employees, officers, directors and contractors of the Company and the Company Subsidiaries, taken as a wholeSubsidiaries in the ordinary course of business);
(xviii) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently or jointly, by or for the Company or any Company Subsidiary;
(xixxv) collective bargaining agreement or other Contract with any labor union;
(xx) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate;
(xxi) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability;
(xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment;
(xxiiixvi) Contract entered into since January 1, 2014 in connection with the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment of more than $100,000250,000;
(xxivxvii) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of Contracts under which the Company or any Company Subsidiary pursuant to the provisions has a continuing indemnification, “earn out” or other contingent payment obligation, in each case, that could result in payments in excess of a Contract $250,000 (other than Contracts entered into in the ordinary course of business with customers or suppliers);
(xviii) Contract providing for indemnification by the Company or any Company Subsidiary in of any officer, director or employee of the ordinary course Company or any Company Subsidiary;
(xix) any Contract that would create a material obligation (or purport to create such obligation) of business consistent with past practiceParent or its Affiliates (other than the Company or the Company Subsidiaries) as a result of the consummation of the transactions contemplated by this Agreement without Parent or its Affiliates (other than the Company or the Company Subsidiaries) becoming a signatory thereto or otherwise agreeing to be bound thereby; and
(xxvxx) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), or any other Contract that if terminated or expired without being renewed would have a Company Material Adverse Effect.
(b) Each Contract of the type described in Section 3.14(a) is referred to herein as a “Company Material Contract”. .” Accurate and complete copies of each Company Material Contract have been provided made available by the Company to Parent, or publicly filed with the SEC.
(c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) none of neither the Company or nor any Company Subsidiary knows of, or has received written notice of, or, to the Knowledge of the Company, otherwise has any knowledge of, any material violation or material default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.
(d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d3.13(d) shall include any stockholder of the Company that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is a party to any Contract with, or is involved, directly or indirectly, in any material business arrangement or other material relationship with with, the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Corning Inc /Ny)
Contracts; Indebtedness. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each Contract to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets, and which falls within any of the following categories:
(i) Contracts between the Company or any Company Subsidiary and any of the 10 largest customers of such Persons (determined on the basis of aggregate revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters ended September 25, 2016);
(ii) Contracts between the Company or any Company Subsidiary and any (A) of the 10 largest suppliers (other than a licensor) that are material, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services (determined on the basis of aggregate payments recognized by the Company and the Company Subsidiaries during the four fiscal quarters ended September 25, 2016) and (B) sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Company Products or Company IP;; Table of Contents
(iii) except for the Contracts disclosed in clauses (i) or (ii) above, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or more or (B) aggregate payments or potential aggregate payments after the date hereof of $200,000 or more;
(iv) Contracts providing for any contingent payments by the Company or any Company Subsidiary exceeding $100,000 in any one case;
(v) Contracts that (A) restrict the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, from competing or engaging in any material respect in any line of business or with any Person or in any geographic area or (B) require any material benefit be granted to a Third Party, or material right be lost by the Company, its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, or the successors to any of the foregoing, as a result of competing in or engaging in any line of business or with any Person or in any geographic area;
(vi) Contracts that grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP;
(vii) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP;
(viii) Contracts that (A) contain any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, (B) grant “most favored nation” rights, (C) grant material guaranteed availability of supply of Company Products for a period greater than twenty-four (24) months, (D) guarantee as to foundry capacity or priority or (E) guarantee prices for a period of greater than twenty-four (24) months;
(ix) Contracts pursuant to which the Company or any Company Subsidiary has agreed to provide source code of Company Proprietary Software to be put in escrow or to be provided to any Third Party (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipient);
(x) Company IP Contracts, except for Contracts for Standard Software or where Company or its Subsidiaries grant non-exclusive licenses relating to Company Products in the ordinary course of business of the Company and its Subsidiaries;; Table of Contents
(xi) Leases, subleases, occupancy agreements and other agreements (whether of real or personal property) to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $100,000 or more or (B) aggregate payments after the date hereof of $100,000 or more;
(xii) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty;
(xiii) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice;
(xiv) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business);
(xv) Contracts under which the Company or any Company Subsidiary have any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,000;
(xvi) any Contracts (A) (1) between the Company or any Company Subsidiary and any Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement;
(xvii) partnership, joint venture or other similar Contract or arrangement material to the Company and the Company Subsidiaries, taken as a whole;
(xviii) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently or jointly, by or for the Company or any Company Subsidiary;
(xix) collective bargaining agreement or other Contract with any labor union;
(xx) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate;; Table of Contents
(xxi) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability;
(xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment;
(xxiii) Contract entered into since January 1, 2014 in connection with the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment of more than $100,000;
(xxiv) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of the Company or any Company Subsidiary pursuant to the provisions of a Contract entered into by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; and
(xxv) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(b) Each Contract of the type described in Section 3.14(a) is referred to herein as a “Company Material Contract”. Accurate and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the SEC.
(c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) none of the Company or any Company Subsidiary knows of, or has received written notice of, any violation or default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.. Table of Contents
(d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d) shall include any stockholder of the Company that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is involved, directly or indirectly, in any material business arrangement or other material relationship with the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Integrated Device Technology Inc)
Contracts; Indebtedness. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each Contract to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assetsassets (other than a Company Employee Plan set forth on Section 3.12(a) of the Company Disclosure Schedule), and which falls within any of the following categories:
(i) Contracts between the Company or any Company Subsidiary and any of the 10 largest licensees or other customers of such Persons (determined on the basis of aggregate revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters ended September 25December 28, 20162014);
(ii) Contracts between the Company or any Company Subsidiary and any (A) Third Party pursuant to which the Company or any Company Subsidiary has acquired or is authorized to use any Third Party Intellectual Property (other than Standard Software), (B) of the 10 largest suppliers (other than a licensor) that are material, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services (determined on the basis of aggregate payments recognized by the Company and the Company Subsidiaries during the four fiscal quarters ended September 25December 28, 20162014) and (BC) any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material involves annual payments of more than $100,000 (provided, however, that for listing purposes under this subsection (C), the use foregoing Contracts do not need to include Contracts on Standard Forms, so long as all Contracts described by this subsection (C) constitute Material Contracts whether or distribution of Company Products or Company IPnot executed on Standard Forms);
(iii) except for the Contracts disclosed in clauses (i) or (ii) above, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 250,000 or more or (B) aggregate payments or potential aggregate payments after the date hereof of $200,000 500,000 or moremore (provided, however, that such thresholds shall be $500,000 and $1,000,000, respectively, with respect to the purchase of Company Products in the ordinary course of business pursuant to Standard Forms);
(iv) Contracts providing for any contingent payments by the Company or any Company Subsidiary exceeding $100,000 250,000 in any one case;
(v) Contracts that (A) restrict the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent Avago or the Surviving Corporation or any of their respective Affiliates, from competing or engaging in any material respect in any line of business or with any Person or in any geographic area or (B) require any material benefit be granted to a Third Party, or material right be lost by the Company, its Subsidiaries or Affiliates, or, after the Effective Time, Parent Avago or the Surviving Corporation or any of their respective Affiliates, or the successors to any of the foregoing, as a result of competing in or engaging in any line of business or with any Person or in any geographic area;
(vi) Contracts that (A) grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP;
, (viiB) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP;
, (viii) Contracts that (AC) contain any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, (BD) grant “most favored nation” rights, (CE) grant material guaranteed availability of supply of Company Products for a period greater than twenty-four (24) months, (DF) grant exclusive rights to purchase any Company Products, including products produced through foundry services, (G) guarantee as to foundry capacity or priority priority, or (EH) guarantee prices for a period of greater than twenty-four (24) months;
(ixvii) Contracts pursuant to which the Company or any Company Subsidiary has agreed to provide source code of Company Proprietary Software to be put in escrow or to be provided to any Third Party (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipient);
(xviii) Company IP Contracts, except for Contracts for Standard Software or where Company or its Subsidiaries grant non-exclusive licenses relating to Company Products in the ordinary course of business of the Company and its Subsidiaries;
(xiix) Leases, subleases, occupancy agreements and other agreements (whether of real or personal property) to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $100,000 or more or (B) aggregate payments after the date hereof of $100,000 250,000 or more;
(xiix) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty;
(xiiixi) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice;
(xivxii) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business);
(xvxiii) Contracts under which the Company or any Company Subsidiary have any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,000;
(xvixiv) any Contracts (A) (1) between the Company or any Company Subsidiary and any Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurement;
(xviixv) partnership, joint venture or other similar Contract or arrangement material to the Company and the Company Subsidiaries, taken as a whole;
(xviiixvi) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently or jointly, by or for the Company or any Company Subsidiary;
(xixxvii) collective bargaining agreement or other Contract with any labor union;
(xxxviii) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate;
(xxixix) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability;
(xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment;
(xxiiixx) Contract entered into since January 1February 25, 2014 2012 in connection with the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment of more than $100,000;
(xxivxxi) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of the Company or any Company Subsidiary pursuant to the provisions of a Contract entered into by the Company or any Company Subsidiary in the ordinary course of business consistent with past practice; and
(xxvxxii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(b) Each Contract of the type described in Section 3.14(a) is referred to herein as a “Company Material Contract”. Accurate and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the SEC.
(c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) to the Knowledge of the Company, none of the Company or any Company Subsidiary knows of, or has received written notice of, any violation or default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract Contract, and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.
(d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d) shall include any stockholder of the Company (other than any passive investor) that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is involved, directly or indirectly, in any material business arrangement or other material relationship with the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary Subsidiary, or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
(e) None of the Company or any of its Subsidiaries entered into any indemnification, employment or other similar Contract with any past or present directors or officers of the Company or any of its Subsidiaries since January 1, 2012.
Appears in 1 contract
Samples: Merger Agreement (Emulex Corp /De/)
Contracts; Indebtedness. (a) Section 3.14(a3.13(a) of the Company Disclosure Schedule sets forth an accurate and complete list of each Contract to which the Company or any Company Subsidiary is a party or which binds or affects their respective properties or assets, and which falls within any of the following categories:
(i) any joint venture, partnership, strategic alliance, limited liability or other similar Contract related to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture in which the Company or any Company Subsidiary owns any interest, or any Contract involving a sharing of profits, losses, costs or liabilities by the Company or any Company Subsidiary with any other Person;
(ii) Contracts (other than purchase orders) between the Company or any Company Subsidiary and any of the 10 ten largest customers of such Persons (determined on the basis of aggregate revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 20162015);
(iiiii) Contracts (other than purchase orders) between the Company or any Company Subsidiary and any (A) of the 10 ten largest suppliers (other than a licensor) that are material, including any supplier of manufacturing, outsourcing, foundry, assembly (packaging), design or development services such Persons (determined on the basis of aggregate payments revenues recognized by the Company and the Company Subsidiaries during the four fiscal quarters year ended September 25December 31, 2016) and (B) sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Company Products or Company IP2015);
(iv) the most recent purchase order, to the extent applicable, for each customer referenced in clause (ii) above, and any outstanding purchase orders in excess of $100,000 with each customer and supplier referenced in clauses (ii) or (iii) above;
(v) except for the Contracts disclosed in clauses (iii) or (iiiii) above, each Contract that involves performance of services or delivery of goods, materials, supplies or equipment or developmental, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 250,000 or more or (B) aggregate payments or potential aggregate payments after the date hereof of $200,000 1,000,000 or more;
(iv) Contracts providing for any contingent payments by the Company or any Company Subsidiary exceeding $100,000 in any one case;
(vvi) Contracts that (A) restrict or purport to restrict the Company or its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any of their respective Affiliates, from competing or engaging in any material respect in any line of business or with any Person or in any geographic area or (B) require during any material benefit be granted to a Third Party, or material right be lost by the Company, its Subsidiaries or Affiliates, or, after the Effective Time, Parent or the Surviving Corporation or any period of their respective Affiliates, or the successors to any of the foregoing, as a result of competing in or engaging in any line of business or with any Person or in any geographic areatime;
(vivii) Contracts that (A) grant any exclusive license or exclusive supply or exclusive distribution agreement to any Company Products or Company IP;
Products, (viiB) Contracts that grant any right of first refusal, or similar right to acquire exclusive rights or ownership with respect to any Company Product, or Company IP;
, (viii) Contracts that (AC) contain any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given Third Party, or any other similar provision, or (BD) grant “most favored nation” rights, (C) grant material guaranteed availability of supply of Company Products for a period greater than twenty-four (24) months, (D) guarantee as to foundry capacity or priority or (E) guarantee prices for a period of greater than twenty-four (24) months;
(ixviii) Leases, subleases, occupancy agreements or other Contracts pursuant concerning the use, occupancy, management or operation of, or evidencing any interests in, any real property to which the Company or any Company Subsidiary has agreed to provide source code is party (including all Lease Agreements set forth on Section 3.2(b) of the Company Proprietary Software to be put in escrow or to be provided to any Third Party (other than source code for software drivers, API’s and similar tools, or immaterial portions of source code of Company Proprietary Software provided pursuant to a software development kit license or disclosed in connection with trials, demonstrations or similar arrangements, in each case on a non-exclusive basis and subject to written non-disclosure and non-use restrictions imposed on the recipientDisclosure Schedule);
(x) Company IP Contracts, except for Contracts for Standard Software or where Company or its Subsidiaries grant non-exclusive licenses relating to Company Products in the ordinary course of business of the Company and its Subsidiaries;
(xiix) Leases, subleases, occupancy agreements and other agreements (whether of real or concerning personal property) property to which the Company or any Company Subsidiary is party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $100,000 250,000 or more or (B) aggregate payments after the date hereof of $100,000 1,000,000 or more;
(xiix) Contracts that contain obligations of the Company or any Company Subsidiary secured by a Lien (other than a Permitted Lien), or interest rate or currency hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of the Company and the Company Subsidiaries under such Contract are in excess of $250,000;
(xi) Contracts relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 250,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty;
(xiii) Contracts pursuant to which the Company or any Company Subsidiary is a party that creates or grants a material Lien (including Liens upon properties acquired under conditional sales, capital leases or other title retention or security devices), other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice;
(xiv) Contracts under which the Company or any Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any Company Subsidiary and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business);
(xvxii) Contracts under which the Company or any Company Subsidiary have any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business business, property or assets, or any capital stock or Equity Interest of any Person (whether by merger, sale of stock, sale of assets or otherwise) with a purchase price in excess of $100,000250,000;
(xvixiii) any Contracts (A) (1) between the Company or any Company Subsidiary and any Contract with a Governmental Authority or (2) between the Company or any Company Subsidiary, as a subcontractor and any prime contractor to any Governmental Authority or (B) to the Knowledge of the Company, financed by any Governmental Authority and subject to the rules and regulations of any Governmental Authority concerning procurementAuthority;
(xviixiv) partnershipCompany IP Contracts (excluding any licenses to commercially available “off-the-shelf” Software, joint venture or other similar Contract or arrangement material non-exclusive licenses granted to customers in the ordinary course of business and confidentiality and intellectual property assignment agreements entered into by employees, officers, directors and contractors of the Company and the Company Subsidiaries, taken as a wholeSubsidiaries in the ordinary course of business);
(xviii) Contracts providing for the development of any material Technology or any material Intellectual Property Right, independently or jointly, by or for the Company or any Company Subsidiary;
(xixxv) collective bargaining agreement or other Contract with any labor union;
(xx) severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $75,000 in the aggregate;
(xxi) all employment agreements or Contracts for the employment or engagement of any officer, individual employee, consultant or other Person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $150,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time for any lawful reason or for no reason without penalty or liability;
(xxii) Contract providing for any current or ongoing obligations to, or rights in favor of, any current or former director, officer or Affiliate of the Company or any of its Subsidiaries, including any Contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless any past or present director, officer, trustee or employee of the Company or any of its Subsidiaries (other than the certificate of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries) other than any Contract for employment;
(xxiiixvi) Contract entered into since January 1, 2014 in connection with the settlement or other resolution of any Action or Order that has any continuing material obligations, liabilities or restrictions or involved payment of more than $100,000250,000;
(xxivxvii) Contract providing for indemnification of any Person with respect to material liabilities relating to any current or former business of the Company, any Company Subsidiary or any predecessor Person other than indemnification obligations of Contracts under which the Company or any Company Subsidiary pursuant to the provisions has a continuing indemnification, “earn out” or other contingent payment obligation, in each case, that could result in payments in excess of a Contract $250,000 (other than Contracts entered into in the ordinary course of business with customers or suppliers);
(xviii) Contract providing for indemnification by the Company or any Company Subsidiary in of any officer, director or employee of the ordinary course Company or any Company Subsidiary;
(xix) any Contract that would create a material obligation (or purport to create such obligation) of business consistent with past practiceParent or its Affiliates (other than the Company or the Company Subsidiaries) as a result of the consummation of the transactions contemplated by this Agreement without Parent or its Affiliates (other than the Company or the Company Subsidiaries) becoming a signatory thereto or otherwise agreeing to be bound thereby; and
(xxvxx) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), or any other Contract that if terminated or expired without being renewed would have a Company Material Adverse Effect.
(b) Each Contract of the type described in Section 3.14(a) is referred to herein as a “Company Material Contract”. .” Accurate and complete copies of each Company Material Contract have been provided made available by the Company to Parent, or publicly filed with the SEC.
(c) (i) Each Company Material Contract is a legally valid, binding and enforceable obligation of the Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, of the other party or parties thereto, in accordance with its terms, subject to applicable bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity, (ii) each of the Company and each Company Subsidiary has in all material respects performed the obligations required by it under each Company Material Contract, (iii) none of neither the Company or nor any Company Subsidiary knows of, or has received written notice of, or, to the Knowledge of the Company, otherwise has any knowledge of, any material violation or material default under (nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Company Material Contract and (iv) neither the Company nor any Company Subsidiary has received any written notice from any other party to terminate any such Company Material Contract, and otherwise has no Knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.
(d) No director, officer, employee, Affiliate (which for purposes of this Section 3.14(d3.13(d) shall include any stockholder of the Company that owns more than 5% of the Company Common Stock) or “associate” or members of any of their “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of the Company or any Company Subsidiary, other than in its capacity as a director, officer or employee of such Person (i) is a party to any Contract with, or is involved, directly or indirectly, in any material business arrangement or other material relationship with with, the Company or any Company Subsidiary (whether written or oral), (ii) directly or indirectly owns, or otherwise has any right, title, interest in, to or under, any material property or right, tangible or intangible, that is used by the Company or any Company Subsidiary or (iii) is engaged, directly or indirectly, in the conduct of the business of the Company and the Company Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Alliance Fiber Optic Products Inc)
