Contracts. (a) Except as set forth in Part 3.9 of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract: (i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act); (ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000; (iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000; (iv) evidencing a capital expenditure in excess of $2,500,000; (v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world; (vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000; (vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000; (viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or (ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract. (b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (COURIER Corp)
Contracts. (a) Except as set forth in Part 3.9 of the Company Disclosure Schedule, as As of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) there are no Contracts that is a “are material contract” contracts (as such term is defined in Item 601(b)(10) of Regulation S-K K) with respect to Merger Partner (assuming Merger Partner was subject to the requirements of the Exchange Act), other than those Contracts identified in Section 3.11(a) of the Merger Partner Disclosure Schedule.
(b) Neither Merger Partner nor any of its Subsidiaries has entered into any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K (assuming Merger Partner was subject to the requirements of the Exchange Act), other than as disclosed in Section 3.11(b) of the Merger Partner Disclosure Schedule.
(c) Neither Merger Partner nor any of its Subsidiaries is a party to any agreement under which a third party would be entitled to receive a license or any other right to Merger Partner Intellectual Property as a result of the transactions contemplated by this Agreement.
(d) Section 3.11(d) of the Merger Partner Disclosure Schedule lists the following Contracts of Merger Partner in effect as of the date of this Agreement:
(i) any Contract (or group of related Contracts) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than 180 days from the date of this Agreement, (B) which involves an aggregate of more than $150,000 or (C) in which Merger Partner or any of its Subsidiaries has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a particular party;
(ii) pursuant to any Contract under which the Acquired Corporations (taken as consequences of a whole) received revenues for the fiscal year ended September 27, 2014, default or is termination would reasonably expected be likely to receive revenues in have a future annual period, in excess of $10,000,000Merger Partner Material Adverse Effect;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is any Contract that could reasonably be expected to make expenditures in a future annual period, in excess have the effect of $2,500,000prohibiting or impairing the conduct of the business of Merger Partner or any of its Subsidiaries or Public Company or any of its Subsidiaries as currently conducted;
(iv) evidencing a capital expenditure any Contract under which Merger Partner or any of its Subsidiaries is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in excess any geographic area, during any period of $2,500,000time or any segment of the market or line of business;
(v) containing a covenant prohibiting any dealer, distribution, joint marketing, joint venture, joint development, partnership, strategic alliance, collaboration, development agreement or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldoutsourcing arrangement;
(vi) relating to any Contract for the conduct of research studies, pre-clinical or evidencing Indebtednessclinical studies, including manufacturing, distribution, supply, marketing or co-promotion of any guarantee products in development by or which has been or which is being marketed, distributed, supported, sold or licensed out, in each case by or on behalf of Indebtedness by the Company Merger Partner or any Subsidiary of the Company, in excess of $5,000,000;its Subsidiaries; and
(vii) any Contract that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights would entitle any third party to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of receive a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees license or any other similar Contractright to Intellectual Property of Public Company or any of Public Company’s Affiliates following the Closing.
(be) Each contract, arrangement, commitment or understanding Merger Partner has made available to Public Company a complete and accurate copy of the type required to be described each Contract listed in Section 3.9(aSections 3.10(a), whether or not set forth in Part 3.9(a3.10(h), 3.10(i), 3.11(a), 3.11(b) and 3.11(d) of the Company Merger Partner Disclosure Schedule. With respect to each Contract so listed: (i) the Contract is legal, is referred to herein valid, binding and enforceable and in full force and effect against Merger Partner and/or its Subsidiaries party thereto, as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingapplicable, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the CompanyMerger Partner, against each other party thereto, as applicable, subject to the Bankruptcy and Equity Exception; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effecteffect against Merger Partner and/or its Subsidiaries party thereto, except as may be limited by bankruptcyapplicable, insolvencyand, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of Merger Partner, against each other party thereto, immediately following the CompanyClosing in accordance with the terms thereof as in effect immediately prior to the Closing (other than any such Contracts that expire or terminate before such time in accordance with their terms and not as a result of a breach or default by Merger Partner or its Subsidiaries), none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each such case for those violations subject to the Bankruptcy and defaults whichEquity Exception and except to the extent the failure to be in full force and effect, individually or in the aggregate, would not reasonably be expected likely to result in have a Company Merger Partner Material Adverse Effect; and (iii) none of Merger Partner, its Subsidiaries nor, to the knowledge of Merger Partner, any other party, is in breach or violation of, or default under, any such Contract, and no Acquired Corporation event has received written occurred, is pending or, to the knowledge of Merger Partner, is threatened, which, with or without notice or lapse of time, or both, would constitute a breach or default by Merger Partner, its Subsidiaries or, to the knowledge of Merger Partner, any other party under such Contract, except for such breaches, violations or defaults that, individually or in the aggregate, have not had, and are not reasonably likely to have, a Merger Partner Material Adverse Effect.
(f) For purposes of this Agreement, the term “Contract” shall mean, with respect to any person, any written, oral or other agreement, contract, subcontract, lease (whether for real or personal property), mortgage, understanding, arrangement, instrument, note, option, warranty, license, sublicense, insurance policy, benefit plan or commitment or undertaking of any nature to which such person is a party or by which such person or any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractits assets are bound under applicable law.
Appears in 3 contracts
Sources: Merger Agreement (Amergent Hospitality Group, Inc), Merger Agreement (Chanticleer Holdings, Inc.), Merger Agreement (Arsanis, Inc.)
Contracts. (a3(n) Except as set forth in Part 3.9 of the Company Disclosure ScheduleSchedule lists the following written agreements, as of or material oral agreements that would be reasonably considered to exist that were entered into and known by the date of this AgreementCompany, neither to which the Company nor any Subsidiary of the Company or its Subsidiaries is a party to or is bound by any Contractparty:
(i) that is a “material contract” (as such term is defined any agreement for the lease of personal or real property to or from any Person providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000,000 per annum;
(ii) pursuant to any agreement for the purchase of products or services (in each case, other than agreements evidenced by purchase orders), under which the Acquired Corporations (taken as undelivered balance of such products and services has a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, selling price in excess of $10,000,0002,500,000;
(iii) pursuant to any agreement for the sale of products or services (in each case, other than agreements evidenced by purchase orders), under which the Acquired Corporations (taken as undelivered balance of such products or services has a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, sales price in excess of $2,500,000;
(iv) evidencing any agreement concerning a capital expenditure in excess of $2,500,000partnership or joint venture;
(v) containing any agreement under which it has created, incurred, assumed or guaranteed any indebtedness for borrowed money in excess of $1,000,000 or any capitalized lease obligation, in excess of $250,000 or under which it has imposed a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying Security Interest on any business anywhere in the worldof its assets, tangible or intangible;
(vi) relating to or evidencing Indebtedness, including any guarantee non-competition agreement which materially restricts the ability of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000its Subsidiaries to freely conduct its business;
(vii) that is any agreement with any of the Sellers and their Affiliates which will survive the Closing, the default of which would result in a Material Adverse Effect;
(viii) any collective bargaining agreement;
(ix) any agreement for employment on a full-time, part-time, consulting or other basis with respect to any individual who received total compensation in 2002 in excess of $250,000 or who has an Inbound License annual base compensation for 2003 in excess of $250,000, or Outbound License, in each case, that either (A) grants exclusive rights any agreement providing severance benefits to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation any such person in excess of $250,000;
(viiix) (A) imposing on, any agreement under which it has advanced or granting to, an Acquired Corporation loaned any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status amount to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements directors, officers, managers and Employees outside the Ordinary Course of Business;
(xi) any other agreement, the default of which would result in a specified good or service from any PersonMaterial Adverse Effect; or
(ixxii) any collective bargaining agreement regulating or controlling or otherwise affecting the voting or disposition of any capital stock or other Contract with a labor organization proprietary interest of the Company or works council representing any of its employees Subsidiaries and any shareholder agreement or agreement relating to the issuance of any securities of the Company or any other similar Contract.
(b) Each contract, arrangement, commitment of its Subsidiaries or understanding the granting of any registration rights with respect thereto and which agreement does not terminate at or prior to Closing. The Company has made available to the type required to be described Buyer a correct and complete copy of each written agreement or a summary of each material oral agreement listed in Section 3.9(a), whether or not set forth in Part 3.9(a§3(n) of the Company Disclosure Schedule, . Each such agreement is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on agreement of the applicable Acquired Corporation andCompany or one of its Subsidiaries, as the case may be, and is in full force and effect and the Company has not received any notice that any such agreement is not a valid and binding agreement of each other party thereto. Neither the Company nor any of its Subsidiaries, and the Company has not received any notice that any other Person party thereto, is in default under any such agreements, and no event has occurred, or, to the knowledge Knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and is alleged to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition existshave occurred, which constitutes or with or without notice, lapse of time or both giving of notice or both, would constitute a material defaultdefault under any such agreement, under the provisions of any Material Contractexcept, except in each case case, for those violations and such defaults whichwhich would not, individually or in the aggregate, would not reasonably be expected to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Polypore International, Inc.), Stock Purchase Agreement (Polypore International, Inc.), Stock Purchase Agreement (Daramic, LLC)
Contracts. (a) Except as set forth in Part 3.9 Section 3.7(a) of the Company Disclosure ScheduleLetter contains an accurate and complete list, as of the date of this AgreementAgreement of all written contracts, neither agreements, commitments, arrangements and other instruments (and solely in the case of any customer contract required to be described below, an accurate and complete summary of any such contract which is not written), in effect as of the date hereof, of the following types to which the Company nor or any Subsidiary of its Subsidiaries is a party or bound or to which any of the Assets is subject (whether or not actually listed in Section 3.7 of the Company is a party to or is bound by any Contract:Disclosure Letter, the “Material Contracts”):
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)any collective bargaining agreement;
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000any Affiliate Agreement;
(iii) pursuant any contract or agreement that (A) materially restricts the Company or any of its Subsidiaries (or the Surviving Company after the Closing) from engaging in any material line of business, developing, marketing or distributing products or services or obligates the Company or any of its Subsidiaries (or the Surviving Company after the Closing) not to which compete with another Person or in any geographic area or during any period of time or that would otherwise materially limit the Acquired Corporations freedom of the Surviving Company from engaging in any material line of business after the Effective Time or (taken as a wholeB) made expenditures for contains exclusivity obligations or restrictions binding on the fiscal year ended September 27, 2014, Company or is reasonably expected to make expenditures in a future annual period, in excess any of $2,500,000its Subsidiaries (or the Surviving Company after the Closing);
(iv) evidencing a any agreement or series of related agreements, including any option agreement, providing for the acquisition or disposition, directly or indirectly, of any business, capital expenditure stock or material assets or any real property (whether by merger, sale of stock, sale of assets or otherwise), in the case of real property involving potential payments, proceeds or carrying value in excess of $2,500,0005 million;
(v) containing a covenant prohibiting any agreement relating to any interest rate, foreign exchange, derivatives or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldhedging transaction;
(vi) any agreement relating to or evidencing Indebtedness, including any guarantee Indebtedness of Indebtedness by the Company or and any Subsidiary of the Company, its Subsidiaries in excess of $5,000,000;
(vii) that is an Inbound License any “take or Outbound Licensepay” agreements involving obligations of the Company or its Subsidiaries in excess of $20,000,000;
(viii) any Licenses or agreements governing the provision of any information technology related services, by or to the Company or any of its Subsidiaries, in each case, to the extent material to their respective businesses;
(ix) all agreements that either prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the capital stock of the Company or any of its Subsidiaries or prohibit the issuance of guarantees by the Company or any of its Subsidiaries, in each case that will not be terminated at or prior to the Effective Time;
(x) any (A) grants exclusive rights agreement that is a settlement or similar agreement (1) with any Governmental Authority, (2) that binds the Company or any of its Subsidiaries to any conduct or from an Acquired Corporation equitable relief or (B3) that requires aggregate payments the Company or any of its Subsidiaries to or from pay an Acquired Corporation amount of money in excess of $250,000;
(viii) (A) imposing on$ 1,000,000 that has not been completely paid as of the date of this Agreement, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts was not entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, consistent with past practice or (DB) requiring an Acquired Corporation to purchase all of its requirements Order or consent of a specified good Governmental Authority to which the Company or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees Subsidiaries is subject, involving material performance by the Company or any of its Subsidiaries after the date of this Agreement;
(xi) any agreement pursuant to which the Company or any of its Subsidiaries has an obligation to make an investment in or loan to any other Person;
(xii) any agreement or series of related agreements (other than purchase orders) with each of the twenty (20) most significant suppliers from which the Company and its Subsidiaries, taken as a whole, purchased materials, supplies, services and other goods (measured by dollar volume of purchases from such suppliers) for the twelve-month period ended September 28, 2013;
(xiii) any customer agreement with the twenty (20) most significant customers (measured by dollar volume of sales to such customer for the twelve-month period ended September 28, 2013) of the Company and its Subsidiaries, taken as a whole;
(xiv) any contract containing most favored nation pricing provisions with a total contract value in excess of $20,000,000 annually;
(xv) any partnership, joint venture, limited liability company or other similar Contractagreements or arrangements (including any material agreement providing for joint research, development or marketing).
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) Material Contract is a valid and binding agreement of the Company Disclosure Scheduleor one or more of its Subsidiaries, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andone hand, and to the knowledge Knowledge of the Company, each other party thereto, on the other hand, and is in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge none of the Company, none any of its Subsidiaries or, to the Knowledge of the Company, any other parties thereto haveparty thereto, violated is in default or breach in any material respect under (or is alleged to be in default or breach in any provision material respect under) the terms of, or committed has provided or failed received any notice of any intention to perform terminate, any act, such Material Contract and no event or condition existscircumstance has occurred that, which with or without notice, notice or lapse of time or both both, would constitute a material default, under the provisions an event of any Material Contract, except in each case for those violations and defaults which, individually default thereunder or in the aggregate, would not reasonably be expected to result in or give any Person a Company Material Adverse Effect, and no Acquired Corporation has received written notice right of any of the foregoingacceleration or early termination thereof (other than pursuant to Section 5.12 hereof). The Company has made available to Parent or Parent’s Representatives and the Merger Subs a true and complete copy of (x) each Material Contract (including all material modifications and amendments thereto and waivers thereunder as of the date hereof) or, if applicable, form of Material Contract and (y) all form customer and vendor contracts used in the Data Room prior and material to the date businesses of this Agreement a complete the Company and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractits Subsidiaries).
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Sysco Corp), Merger Agreement (Us Foods, Inc.)
Contracts. (a) Except as set forth in Part 3.9 Section 2.14 of the Company Disclosure Schedule, Schedule lists the following agreements (whether written or oral) to which the Company is a party as of the date of this Agreement, neither Agreement (other than the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:Transaction Documentation):
(i) that any agreement (or group of related agreements) for the lease of personal property from or to third parties (A) which provides for lease payments in excess of $25,000 per annum or (B) which has a remaining term longer than 12 months and is a “material contract” not cancellable without penalty by the Company on sixty (as such term is defined in Item 601(b)(1060) of Regulation S-K of the Exchange Act)days or less prior written notice;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $25,000 per annum, or (B) in which the Acquired Corporations (taken as Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase goods or services exclusively from a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, each establishes a material joint venture or legal partnership;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement that purports to limit in any material respect the right of the Company to engage in any line of business, or to compete with any person or operate in any geographical location;
(vi) any employment agreement or consulting agreement which provides for payments in excess of $50,000 per annum (other than employment or consulting agreements terminable on less than thirty (30) days’ notice);
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which have been made available to Parent);
(viii) any agreement or commitment for capital expenditures in excess of $25,000, for a single project (it being represented and warranted that the liability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate for all projects);
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(x) any agreement which contains any provisions requiring the Company or to indemnify any other party theretothereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(xi) any agreement, other than as contemplated by this Agreement, relating to the future sales of securities of the Company; and
(xii) any other agreement (or group of related agreements) (A) under which the Company is obligated to make payments or incur costs in excess of $25,000 in any year or (B) not entered into in the Ordinary Course of Business, in each case which is not otherwise described in clauses (i) through (xi).
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.14 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.14 of the Company Disclosure Schedule: (i) the agreement is a legal, valid, binding and enforceable obligation of the Company and in full force and effect, except as such enforceability may be limited by under applicable bankruptcy, insolvencyinsolvency and similar laws, moratorium and other similar applicable law rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity whether applied in a court of law or a court of equity; (ii) the agreement will not, as a result of the execution and delivery by the Company of this Agreement or the Transaction Documentation, or the consummation by the Company of the transactions contemplated hereby or thereby, cease to be a legal, valid, binding and enforceable obligation of the Company, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity. No Acquired Corporation has, whether applied in a court of law or a court of equity and will, or to be in full force and effect in accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) neither the Company nor, to the knowledge of the Company, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or, to the knowledge of the Company, any other party under the provisions of any Material Contractsuch contract, except in each case for those violations any breach, violation or default that has not had and defaults which, individually or in the aggregate, would not reasonably be expected anticipated to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 3 contracts
Sources: Share Exchange Agreement (Neonc Technologies Holdings, Inc.), Share Exchange Agreement (Neonc Technologies Holdings, Inc.), Share Exchange Agreement (Neonc Technologies Holdings, Inc.)
Contracts. (a) Except as set forth in Part 3.9 Other than the contracts or agreements of the Company Disclosure Schedule, included as of exhibits to the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation SCompany's Annual Report on Form 10-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 2730, 20141997, the Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended December 31, 1997, March 31, 1998 and June 30, 1998, or any periodic filing made pursuant to the Exchange Act (the "MATERIAL CONTRACTS"), and contracts or agreements between the Company and its wholly owned Subsidiaries or between wholly owned Subsidiaries of the Company, each of the following contracts and agreements to which the Company or any of its Subsidiaries is reasonably expected a party or by which any of them is bound (contracts and agreements of the types described below being "IDENTIFIED CONTRACTS") has been previously delivered to receive revenues Purchaser, in a future annual periodeach case as such Identified Contract is in effect on the date hereof:
(i) contracts and agreements for the purchase of inventories, goods or other materials by, or for the furnishing of services to, the Company or any of its Subsidiaries that (A) require payments by the Company or any of its Subsidiaries in excess of $10,000,00025,000 and (B) have a term of one year or more and are not terminable by the Company or Subsidiary party thereto, as the case may be, on notice of six months or less without penalty;
(ii) contracts and agreements for the sale of inventories, goods or other materials, or for the furnishing of services, by the Company or any of its Subsidiaries that (A) require payments to the Company or any of its Subsidiaries in excess of $100,000 and (B) have a term of one year or more and are not terminable by the Company or Subsidiary party thereto, as the case may be, on notice of six months or less without penalty;
(iii) pursuant to which manufacturer's representative, sales agency and distribution contracts and agreements that (A) have a term of one year or more and are not terminable by the Acquired Corporations (taken Company or Subsidiary party thereto, as a whole) made expenditures for the fiscal year ended September 27case may be, 2014on notice of six months or less without penalty, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000(B) are otherwise material;
(iv) evidencing a capital expenditure contracts and agreements (A) governing the terms of indebtedness, or guarantees of indebtedness, of, or secured by assets of, the Company or any of its Subsidiaries in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing 100,000 principal amount in any business or geographic areathe aggregate, or from soliciting customers (B) governing the terms of "synthetic" or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating capital leases pursuant to or evidencing Indebtedness, including any guarantee of Indebtedness by which the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements its Subsidiaries has financial obligations in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting providing for all obligations of the Company and its Subsidiaries in respect of interest rate swap or similar agreements, commodity swaps or options or similar agreements or foreign currency hedge, exchange or similar agreements or any type of exclusive rights to any Personother derivative instrument;
(v) shareholder, other than sales representation, distribution, licensing and voting trust or similar contracts entered into in the ordinary course of business and that relate solely agreements relating to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all voting of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement shares or other Contract with a labor organization equity or works council representing debt interests of the Company or any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.Subsidiaries;
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Mecklermedia Corp), Agreement and Plan of Merger (Penton Media Inc), Agreement and Plan of Merger (Penton Media Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 3.16 of the Company Parent Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Parent or any of its Subsidiaries is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” any agreement (as such term is defined in Item 601(b)(10or group of related agreements) for the lease of Regulation S-K of the Exchange Act)personal property from or to third parties;
(ii) pursuant to which the Acquired Corporations any agreement (taken as a wholeor group of related agreements) received revenues for the fiscal year ended September 27, 2014, purchase or is reasonably expected to receive revenues in a future annual period, in excess sale of $10,000,000products or for the furnishing or receipt of services;
(iii) pursuant to which the Acquired Corporations (taken as any agreement establishing a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing agreement that purports to limit in any business or geographic areamaterial respect the right of the Company to engage in any line of business, or from soliciting customers to compete with any person or employees, or otherwise restricting operate in any Acquired Corporation from carrying on any business anywhere in the worldgeographical location;
(vi) relating to any employment or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000consulting agreement;
(vii) that is an Inbound License any agreement involving any current or Outbound Licenseformer officer, in each case, that either (A) grants exclusive rights to director or from an Acquired Corporation stockholder of the Parent or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000any Affiliate thereof;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in agreement under which the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements consequences of a specified good default or service from any Person; ortermination would reasonably be expected to have a Parent Material Adverse Effect;
(ix) any collective bargaining agreement which contains any provisions requiring the Parent or other Contract with a labor organization or works council representing any of its employees Subsidiaries to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any other agreement (or group of related agreements) either involving more than $5,000 or not entered into in the Ordinary Course of Business; and
(xi) any agreement, other than as contemplated by this Agreement and the Split-Off, relating to the sales of securities of the Parent or any other similar Contractof its Subsidiaries to which the Parent or such Subsidiary is a party.
(b) Each contract, arrangement, commitment The Parent has delivered or understanding made available to the Company a complete and accurate copy of each agreement listed in Section 3.16 of the type required Parent Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be described legal, valid, binding and enforceable and in Section 3.9(a), whether or not set forth in Part 3.9(a) of full force and effect immediately following the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire Closing in accordance with their the terms during thereof as in effect immediately prior to the Pre-Closing Period Closing; and (excluding, for iii) neither the avoidance Parent nor any of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andits Subsidiaries nor, to the knowledge of the CompanyParent, each any other party theretoparty, is in breach or violation of, or default under, any such agreement, and in full force and effectno event has occurred, except as may be limited by bankruptcyis pending or, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the CompanyParent, none is threatened, which, after the giving of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, with lapse of time or both otherwise, would constitute a material default, under breach or default by the provisions of any Material Contract, except in each case for those violations and defaults which, individually Parent or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior its Subsidiaries or, to the date knowledge of this Agreement a complete and correct copy (including the Parent, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 3 contracts
Sources: Merger Agreement (ViewRay, Inc.), Merger Agreement (ViewRay, Inc.), Agreement and Plan of Merger and Reorganization (Akoustis Technologies, Inc.)
Contracts. (a) Except for Contracts filed as set forth exhibits to the Filed SEC Documents and purchase orders entered into in Part 3.9 the ordinary course of business consistent with past practice, Section 4.17 of the Company Disclosure Schedule, Schedule sets forth a true and complete list as of the date of this Agreement, neither Agreement of each of the following Contracts (the “Material Company Contracts”):
(i) all Contracts of the Company nor or any Subsidiary of its Subsidiaries made in the ordinary course of business consistent with past practice having an aggregate value, or involving payments by or to the Company or any of its Subsidiaries, of more than $2,000,000, and for which there has been no final close out and final payment under such Contract has not been made;
(ii) all Contracts currently in effect to which the Company or any of its Subsidiaries is a party that contain a covenant that purports to limit in any material respect either the type of business in which the Company or any of its Subsidiaries (or, after the payment by Merger Sub for Shares pursuant to the Offer, Parent or any of its Subsidiaries) or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business or develop, market or distribute any products or services;
(iii) all Contracts which grant “most favored nation” status to any Person that, following the Acceptance Time, would apply to Parent or any of its Subsidiaries, including the Company or any of its Subsidiaries;
(iv) all Contracts which prohibit or limit, in any material respect, the right of the Company or any of its Subsidiaries (or, after the Acceptance Time, would prohibit or limit, in any material respect, the right of Parent or any of its Subsidiaries) to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property Rights;
(v) all Contracts under which the Company or any of its Subsidiaries has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in excess of $250,000;
(vi) all standstill or similar agreements to which the Company is a party to or is bound by any Contract:that would remain in effect following the Merger;
(ivii) all joint venture, partnership, material teaming or other similar agreements to which the Company or any of its Subsidiaries is a party (including all amendments thereto);
(viii) all Contracts to which the Company or any of its Subsidiaries is a party providing for indemnity (including any obligations to advance funds for expenses) to the current or former directors, officers, employees or agents of the Company or any of its Subsidiaries;
(ix) all Contracts which are material to the Company or any operating segment providing for termination, acceleration of payment or other special rights upon the occurrence of a change of control of the Company;
(x) all Contracts between the Company or any of its Subsidiaries and any Governmental Entity (each, a “Company Government Contract”) and all Contracts between the Company or any of its Subsidiaries and any prime contractor or upper-tier subcontractor relating to a Contract between such person and any Governmental Entity (each, a “Company Government Subcontract”); and
(xi) all other Contracts that is constitute a “material contract” (as such term is defined in Item item 601(b)(10) of Regulation S-K of the Exchange ActK);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Material Company Disclosure Schedule, Contract is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the Company or its applicable Acquired Corporation and, to the knowledge of the Company, each other party Subsidiary thereto, and is in full force and effect. Neither the Company nor any of its Subsidiaries is in breach, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles default or violation of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, (and no event or condition exists, has occurred which with notice or without notice, the lapse of time or both would constitute a material defaultdefault or violation by the Company or any of its Subsidiaries of) any term, under the provisions condition or provision of any indebtedness, guarantee or any Material Company Contract, except in each case for those violations and defaults whichincluding any specification, individually schedule, quality assurance provision, inspection or in test requirement, or performance or payment milestone, to which the aggregateCompany or any of its Subsidiaries is a party or by which any of their respective assets is bound, which breach, default or violation would not reasonably be expected to result in have a Company Material Adverse Effect, .
(c) Except where the following matters have not had and no Acquired Corporation has received written notice of any would not have a Company Material Adverse Effect:
(i) (A) to the Knowledge of the foregoing. The Company, each Company has made available to Parent Government Contract or Parent’s Representatives in Company Government Subcontract was legally awarded and (B) each Company Government Contract (or, if applicable, each prime Contract under which such Company Government Subcontract was awarded) is not the Data Room prior to subject of bid or award protest proceedings as of the date of this Agreement Agreement;
(ii) neither the United States government nor any prime contractor, subcontractor or other person or entity has notified the Company or any of its Subsidiaries, in writing, that the Company or any of its Subsidiaries has breached or violated any Law or material certification, representation, clause, provision or requirement pertaining to a Company Government Contract or Company Government Subcontract, and all facts set forth or acknowledged by any representations or certifications submitted by or on behalf of the Company or any of its Subsidiaries in connection with a Company Government Contract or Company Government Subcontract were current, accurate and complete and correct copy in all material respects on the date of submission;
(including iii) neither the Company nor any material amendmentof its Subsidiaries has received any notice of termination for convenience, modificationnotice of termination for default, extension cure notice or renewal show cause notice pertaining to a Company Government Contract or Company Government Subcontract; and
(iv) other than in the ordinary course of business consistent with past practice no cost incurred by the Company or any of its Subsidiaries pertaining to a Company Government Contract or Company Government Subcontract has been questioned or challenged is the subject of any audit or investigation or has been disallowed by any Governmental Entity.
(d) From January 1, 2009 through the date of this Agreement, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of their respective directors, officers or employees, is or has been under administrative, civil or criminal investigation or indictment by any Governmental Entity, or any audit or investigation by the Company or any of its Subsidiaries, with respect theretoto any alleged act or omission arising under or relating to any Company Government Contract or Company Government Subcontract.
(e) There are no disputes relating to the Company Government Contracts which, if resolved unfavorably to the Company, would have a Company Material Adverse Effect. In addition, to the Knowledge of each Material Contractthe Company, there are no known or reasonably foreseeable expenditures which would materially increase the estimated cost to complete performance of the Company Government Contracts.
(f) To the Knowledge of the Company, from January 1, 2009 through the date of this Agreement, neither the Company, any of its directors or officers nor any operating segment has been debarred or suspended for 90 days or more in any consecutive twelve-month period, or proposed for debarment or suspension, or received notice of actual or proposed debarment or suspension, from participation in the award of Contracts with the United States government (excluding for this purpose ineligibility to bid on certain contracts due to generally applicable bidding requirements). To the Knowledge of the Company, from January 1, 2009 through the date of this Agreement, there exist no facts or circumstances that would warrant the institution of suspension or debarment proceedings.
Appears in 3 contracts
Sources: Merger Agreement (Flir Systems Inc), Merger Agreement (Flir Systems Inc), Merger Agreement (Icx Technologies Inc)
Contracts. (a) Except as set forth in Part 3.9 of the Company Disclosure ScheduleSchedule 3.08(a) sets forth, as of the date of this Agreementhereof, neither the Company nor any Subsidiary a true and complete list of the Company following Contracts related to the Business to which any of the LIN Companies or its Affiliates is a party to or is bound by any Contractthe Seller or its Affiliates will be a party immediately following the Merger Closing:
(i) that any Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)expected to exceed, $150,000;
(ii) any Contract under which payments by or obligations of the LIN Companies, the Seller or their Affiliates, relating to the Business, will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the transactions contemplated by this Agreement, or under which the value of the payments by or obligations of the LIN Companies, the Seller or their Affiliates, relating to the Business, will be calculated on the basis of any of the transactions contemplated by this Agreement, whether pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, change in control or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000otherwise;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures any contract for the fiscal year ended September 27, 2014, Program Rights that involves cash payments or is reasonably expected to make expenditures in a future annual period, cash receipts in excess of $2,500,000100,000 over the remaining term of such contract;
(iv) evidencing a capital expenditure in excess of $2,500,000any network affiliation agreement;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in retransmission consent agreement with any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere MVPD with more than 10,000 subscribers in the worldStations’ Market;
(vi) relating any Contract that relates to an ownership interest in any corporation, partnership, joint venture or evidencing Indebtedness, including any guarantee of Indebtedness by the Company other business enterprise or any Subsidiary of the Company, in excess of $5,000,000other entity;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000any Real Property Lease;
(viii) any Contract relating to the Business, that relates to the guarantee (Awhether absolute or contingent) imposing onby the Seller or the LIN Companies of (x) the performance of any other Person (other than their respective Affiliates) or (y) the whole or any part of the Indebtedness or liabilities of any other Person (other than their respective Affiliates);
(ix) any Bargaining Agreement;
(x) any Contract that contains any power of attorney authorizing the incurrence of an obligation on the part of the Seller, the LIN Companies relating to the Business;
(xi) any Contract that creates any partnership or granting tojoint venture or relates to the acquisition, issuance or transfer of any securities;
(xii) any Contract that relates to the borrowing or lending of money;
(xiii) any Contract that grants any Person an Acquired Corporation option or a right of first refusal, right of first offer or similar preferential right to purchase or acquire any future minimum take-or-pay requirements Station Asset;
(xiv) any Contract involving the purchase or sale of Real Property that has not closed as of the date hereof;
(xv) any Contract entered into after January 1, 2013 relating to the acquisition or disposition of any material portion of the Business (whether by merger, sale of stock, sale of assets or otherwise);
(xvi) any Contract involving construction, architecture, engineering or other agreements relating to uncompleted construction projects, in each case that involve payments in excess of $100,000, ;
(Bxvii) granting “most favored nation,” “most favored customer” or similar status any Contract involving compensation to any PersonTransferred Employee (as defined in Section 8 hereof), (C) granting or any type of exclusive rights Contract with an independent contractor or consultant engaged to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely perform services to the Company’s publishing business and do Business in excess of $100,000 per year (provided, however, that for purposes of this Section 3.8(a)(xiii), the term Contract shall not relate to the Company’s book manufacturing business, include at-will Contracts that can be terminated upon 30 days’ notice without penalty or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; oradditional payment);
(ixxviii) any collective bargaining agreement or other Contract with a labor organization Governmental Authority (other than ordinary course Contracts with Governmental Authorities as a customer) which imposes any material obligation or works council representing restriction on the Seller, the LIN Companies or their Affiliates as it relates to the Business; and
(xix) any Contract relating to the use of its employees or any a Station’s digital bit stream other similar Contractthan in connection with broadcast television services. The contracts, agreements and leases required to be disclosed pursuant to this Section 3.08(a) are collectively referred to herein as the “Material Contracts”.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid is in full force and effect and binding on and enforceable upon the applicable Acquired Corporation LIN Companies, and will be immediately following the Merger Closing binding and enforceable upon Seller or its Affiliates, as applicable, and, to the knowledge Knowledge of Seller, the Company, each other party parties thereto, and subject in full force and effect, except as may be limited by each case to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and or other similar applicable law Laws affecting or relating to enforcement of creditors’ rights generally and by general principles of equity (regardless of whether enforcement is considered in a proceeding at law or in equity). No Acquired Corporation hasPrior to the Merger Closing, the LIN Companies have, and following the Merger Closing, the Seller and its Affiliates have, performed their respective obligations under each of the Material Contracts in all material respects and are not in material default thereunder, and to the knowledge Knowledge of Seller, no other party to any of the Company, none of the other parties thereto have, violated Material Contracts is in default thereunder in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractrespect.
Appears in 3 contracts
Sources: Asset Purchase Agreement (LIN Media LLC), Asset Purchase Agreement (Mercury New Holdco, Inc.), Asset Purchase Agreement (Media General Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 5.17(a) of the Company Disclosure ScheduleSchedule lists the following agreements (each, as of the date of this Agreement, neither a “Scheduled Contract”) to which the Company nor or any Consolidated Subsidiary of the Company is a party and which are currently effective:
(b) any agreement (or group of related agreements) for the lease of personal property from or to third parties in effect after the Effective Date pertaining to the Company or any Consolidated Subsidiary that involve payments from or to the Company or any Consolidated Subsidiary or any other obligations in excess of $***;
(c) any agreement (or group of related agreements) for the purchase of products or services pertaining to the Company or any Consolidated Subsidiary, excluding service agreements by and between the Company or any Consolidated Subsidiary and any of their respective customers, in effect after the Effective Date that involve payments for a sum in excess of $***, or in which the Company or any Consolidated Subsidiary has granted “most favored nation” pricing provisions under which the counterparty is bound by entitled to more favorable pricing if the Company or Consolidated Subsidiary grants such pricing to a third party, marketing or distribution rights relating to any Contract:services, products or territory, has agreed to purchase a minimum quantity of goods or services, or has agreed to purchase goods or services exclusively from a certain party; *** Represents material omitted per the registrant's Confidential Treatment Request and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
(i) that is any agreement concerning the establishment or operation of a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)partnership, joint venture or limited liability company;
(ii) pursuant to any agreement (or group of related agreements) under which the Acquired Corporations Company or any Consolidated Subsidiary has created, incurred, assumed or guaranteed (taken as or may create, incur, assume or guarantee) a wholematerial amount of indebtedness (including capitalized lease obligations, except those entered into in the Ordinary Course of Business) received revenues for the fiscal year ended September 27or under which it has imposed a Lien on any of its assets, 2014, tangible or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000intangible;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures any agreement for the fiscal year ended September 27disposition of any significant portion of the assets or business of the Company or any Consolidated Subsidiary or any agreement for the acquisition of the assets or business of any other entity (other than dispositions and acquisitions of containers and cargo handling equipment in the Ordinary Course of Business) or purchases or dispositions of marine shipping containers, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000freight handling equipment and parts and supplies for maintenance and repair thereof;
(iv) evidencing a capital expenditure in excess of $2,500,000any agreement concerning non-competition or non-solicitation;
(v) containing a covenant prohibiting any severance agreement (or restricting any Acquired Corporation from competing in any business agreement that includes provisions for the payment of severance) or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in retention agreement under which payments shall be due and owing as of the worldClosing Date;
(vi) relating to any material settlement agreement or evidencing Indebtedness, settlement-related agreement (including any guarantee of Indebtedness by the Company or agreement in connection with which any Subsidiary employment-related claim is settled) under which payments shall be due and owing as of the Company, in excess of $5,000,000Closing Date;
(vii) that is an Inbound License any agreement involving any current or Outbound Licenseformer officer, director or shareholder of the Company or any Affiliate thereof expected to be in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000effect and not fully performed at the Closing Date;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements agreement not otherwise listed in excess any other section of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to Disclosure Schedule under which the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements consequences of a specified good default or service from any Person; ortermination would reasonably be expected to have a Material Adverse Effect;
(ix) any collective bargaining agreement agency agreements to which the Company or any Consolidated Subsidiary is a party or by which the Company or any Consolidated Subsidiary is bound;
(x) any change of control or other Contract with a labor organization agreement that includes rights or works council representing any obligations triggered by this Agreement or consummation of its employees or the transactions contemplated hereby;
(xi) any other similar Contractagreement (or group of related agreements) involving more than $*** and not entered into in the Ordinary Course of Business.
(bd) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent the Buyer a complete and accurate copy of each Contract (as amended to date). With respect to each Contract: (i) the Contract is legal, valid, binding and enforceable and in full force and effect against the Company or Parentthe Consolidated Subsidiary that is the party thereto and, to the Company’s Representatives Knowledge, against each other party thereto; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect against the Data Room Company or the Consolidated Subsidiary that is the party thereto and, to the Company’s Knowledge, against each other party thereto immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the date Closing; and (iii) neither the Company, any Consolidated Subsidiary nor, to the Knowledge of this Agreement the Company, any other party, is in material breach or violation of, or material default under, any such Contract, and no event has occurred, is pending or, to the Knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a complete material breach or default by the Company or any Consolidated Subsidiary, or, to the Knowledge of the Company, any other party under such Contract. *** Represents material omitted per the registrant's Confidential Treatment Request and correct copy filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
(including e) Neither the Company nor any material amendmentConsolidated Subsidiary is a party to any oral contract, modificationagreement or other arrangement which, extension or renewal with respect theretoif reduced to written form, would be required to be listed in Section 5.17(a) of each Material Contractthe Disclosure Schedule under the terms of Section 5.17(a).
Appears in 3 contracts
Sources: Stock Purchase Agreement (Agl Resources Inc), Stock Purchase Agreement (Agl Resources Inc), Stock Purchase Agreement (Agl Resources Inc)
Contracts. (a) Except as set Excluding the Excluded Contracts, the Excluded Items and any Contracts entered into after the Effective Date in accordance with Section 6.3, Section 4.12 sets forth in Part 3.9 a list of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of the following Contracts to which an Acquired Company is a party to or is by which the Acquired Company may be bound by any Contract:(collectively, the “Material Contracts”):
(i) that is Contracts for the future purchase, exchange or sale of natural gas or other fuel for a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)Project;
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues Contracts for the fiscal year ended September 27future purchase, 2014, exchange or is reasonably expected to receive revenues in a future annual period, in excess sale of $10,000,000electric power or ancillary services;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures Contracts for the fiscal year ended September 27, 2014, future transportation of natural gas or is reasonably expected to make expenditures in other fuel for a future annual period, in excess of $2,500,000Project;
(iv) evidencing a capital expenditure in excess Contracts for the future transmission of $2,500,000electric power;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldinterconnection Contracts;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary other than Contracts of the Companynature addressed by Section 4.12(a)(i) - (iv), in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either Contracts (A) grants exclusive rights to or from an Acquired Corporation for the sale of any Asset or (B) requires aggregate payments that grant a right or option to purchase or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation sell any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any PersonAsset, other than sales representation, distribution, licensing and similar contracts in each case Contracts entered into in the ordinary course of business and that relate solely relating to Assets with a value of less than $1,000,000 individually or $5,000,000 in the Company’s publishing business and do not relate to aggregate;
(vii) other than Contracts of the Company’s book manufacturing businessnature addressed by Section 4.12(a)(i) - (iv), Contracts for the future receipt of any Assets or services requiring payments in excess of $1,000,000 for each individual Contract;
(viii) Contracts under which it has created, incurred, assumed or guaranteed any outstanding indebtedness for borrowed money or any capitalized lease obligation, or (D) requiring an Acquired Corporation to purchase all under which it has imposed a security interest on any of its requirements of a specified good Assets, tangible or service from any Person; orintangible, which security interest secures outstanding indebtedness for borrowed money, including the Project Financing Documents;
(ix) outstanding agreements of guaranty, surety or indemnification (excluding indemnification provisions customarily included in Contracts entered into in the ordinary course of business), direct or indirect, by such Acquired Company;
(x) Contracts for consulting services providing annual compensation in excess of $100,000 and which are not cancelable by such Acquired Company on notice of ninety (90) days or less;
(xi) Hedging Agreements;
(xii) Contracts that purport to limit an Acquired Company’s freedom to compete in any collective bargaining agreement line of business or in any geographic area or that restrict the right of each Acquired Company to sell to or purchase from any Person or to hire any Person, or that grant the other Contract with a labor organization or works council representing any of its employees party or any other similar Contractthird person “most favored nation” status or any type of special discount rights;
(xiii) partnership, joint venture or limited liability company agreements; and
(xiv) Contracts under which each Acquired Company owns, leases or holds an easement interest, license or permit to use, the Property listed on Schedule 4.13(i) (the “Real Property Documents”).
(b) Each contractSeller has made available to Buyer accurate and complete copies of all Material Contracts.
(c) Other than, arrangementas of Closing, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that will be terminated pursuant to Section 6.8 or otherwise will expire in accordance with their terms during the Pre-Closing Period (excludingrespective terms, for the avoidance of doubt, early termination), all each of the Material Contracts are valid and binding on the applicable Acquired Corporation andis, to the knowledge of the Companyin all material respects, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium effect and other similar applicable law affecting creditors’ rights generally constitutes a valid and by general principles of equity. No Acquired Corporation has, and to the knowledge binding obligation of the CompanyAcquired Company party thereto and, none to Seller’s Knowledge, of each of the other parties thereto have, violated thereto.
(d) (i) No Acquired Company is in breach or default in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material ContractContract and (ii) to Seller’s Knowledge, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected no other party to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent Material Contracts is in breach or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractdefault thereunder.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Vistra Energy Corp), Purchase and Sale Agreement (Vistra Energy Corp), Purchase and Sale Agreement (Energy Future Intermediate Holding CO LLC)
Contracts. (a) Except as set forth in Part 3.9 Section 3.16 of the Company Parent Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Parent or any Subsidiary is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” any agreement (as such term is defined in Item 601(b)(10or group of related agreements) for the lease of Regulation S-K of the Exchange Act)personal property from or to third parties;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $5,000, or (C) in which the Acquired Corporations (taken as Parent or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as any agreement establishing a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $5,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any agreement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any employment or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000consulting agreement;
(vii) that is an Inbound License any agreement involving any officer, director or Outbound License, in each case, that either (A) grants exclusive rights to stockholder of the Parent or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000any Affiliate thereof;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in agreement under which the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements consequences of a specified good default or service from any Person; ortermination would reasonably be expected to have a Parent Material Adverse Effect;
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing which contains any of its employees provisions requiring the Parent or any Subsidiary to indemnify any other similar Contractparty thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business); and
(x) any other agreement (or group of related agreements) either involving more than $5,000 or not entered into in the Ordinary Course of Business.
(b) Each contract, arrangement, commitment The Parent has delivered or understanding made available to the Company a complete and accurate copy of each agreement listed in Section 3.16 of the type required Parent Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be described legal, valid, binding and enforceable and in Section 3.9(a), whether or not set forth in Part 3.9(a) of full force and effect immediately following the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire Closing in accordance with their the terms during thereof as in effect immediately prior to the Pre-Closing Period Closing; and (excluding, for iii) neither the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andParent nor any Subsidiary nor, to the knowledge of the CompanyParent, each any other party theretoparty, is in breach or violation of, or default under, any such agreement, and in full force and effectno event has occurred, except as may be limited by bankruptcyis pending or, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the CompanyParent, none is threatened, which, after the giving of the other parties thereto havenotice, violated in any material respect any provision ofwith lapse of time, or committed or failed to perform any actotherwise, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material defaultbreach or default by the Parent or any Subsidiary or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any knowledge of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including , any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 3 contracts
Sources: Merger Agreement (Ethanex Energy, Inc.), Merger Agreement (Foothills Resources Inc), Merger Agreement (Kreido Biofuels, Inc.)
Contracts. (a) Except as set forth in Part 3.9 Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company Disclosure Schedule, or any Subsidiary is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than 12 months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Acquired Corporations (taken as Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, each establishes a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under the Exchange Act (an “Affiliate”), thereof;
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party theretothereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business); and
(x) any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.13 of the Disclosure Schedule: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, except valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as may be limited by bankruptcyin effect immediately prior to the Closing; and (iii) neither the Company nor any Subsidiary nor, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or any Subsidiary or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any knowledge of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including Company, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 3 contracts
Sources: Merger Agreement (Solar Energy Initiatives, Inc.), Merger Agreement (Critical Digital Data, Inc.), Merger Agreement (Foothills Resources Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 2.14 of the Company Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, neither Agreement (other than the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:Transaction Documentation (as hereinafter defined)):
(i) that any agreement (or group of related agreements) for the lease of personal property from or to third parties (A) which provides for lease payments in excess of $25,000 per annum or (B) which has a remaining term longer than 12 months and is a “material contract” not cancellable without penalty by the Company on sixty (as such term is defined in Item 601(b)(1060) of Regulation S-K of the Exchange Act)days or less prior written notice;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $25,000, or (B) in which the Acquired Corporations (taken as Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Stockholders and the Company, each establishes a material joint venture or legal partnership;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement that purports to limit in any material respect the right of the Company to engage in any line of business, or to compete with any person or operate in any geographical location;
(vi) any employment agreement, executive agreement (including without limitation the Hutz Agreement) or consulting agreement which provides for payments in excess of $50,000 per annum (other than employment or consulting agreements terminable on less than thirty (30) days’ notice);
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which have been made available to Buyer);
(viii) any agreement or commitment for capital expenditures in excess of $25,000, for a single project (it being represented and warranted that the liability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate for all projects);
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(x) any agreement which contains any provisions requiring the Company to indemnify any other party theretothereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(xi) any agreement, other than as contemplated by this Agreement, relating to the future sales of securities of the Company; and
(xii) any other agreement (or group of related agreements) (A) under which the Company is obligated to make payments or incur costs in excess of $25,000 in any year or (B) not entered into in the Ordinary Course of Business, in each case which is not otherwise described in clauses (i) through (xi).
(b) The Stockholders have delivered or made available to the Buyer a complete and accurate copy of each agreement listed in Section 2.14 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.14 of the Company Disclosure Schedule: (i) the agreement is a legal, valid, binding and enforceable obligation of the Company and in full force and effect, except as such enforceability may be limited by under applicable bankruptcy, insolvencyinsolvency and similar laws, moratorium and other similar applicable law rules or regulations affecting creditors’ rights and remedies generally and by to general principles of equity whether applied in a court of law or a court of equity; (ii) the agreement will continue to be legal, valid, binding and enforceable obligation of the Company, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity. No Acquired Corporation has, whether applied in a court of law or a court of equity and will be in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) neither the Company nor, to the knowledge of the Stockholders and the Company, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Stockholders and the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or, to the knowledge of the Stockholders and the Company, any other party under the provisions of any Material Contractsuch contract, except in each case for those violations any breach, violation or default that has not had and defaults which, individually or in the aggregate, would not reasonably be expected anticipated to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement (Ds Healthcare Group, Inc.)
Contracts. Schedule 3.5 is a true and complete list, by category, of the following types of agreements and contracts (but excluding the Leases unless required to be disclosed pursuant to subsection (n) below) that are attributable to or affect the Subject Interests or any other Purchased Assets (collectively, the “Material Contracts” and each, a “Material Contract”): (a) any agreement(s) with any Affiliate(s) of Seller; (b) any agreement(s) for the sale, exchange, or other disposition of Hydrocarbons produced from the Purchased Assets, any agreement(s) for the purchase of Hydrocarbons, gathering contracts, processing contracts, transportation contracts, marketing contracts, disposal or injection contracts, in each case that are not cancelable without penalty on not more than 60 days prior written notice; (c) any agreement(s) to sell, lease, farm-out, or otherwise dispose of any of Seller’s interests in any of the Purchased Assets other than conventional rights of reassignment; (d) any tax partnership(s) of Seller affecting any of the Purchased Assets; (e) any operating agreement(s) to which Seller’s interests in any of the Purchased Assets are subject; (f) any agreement(s) under which Seller has forfeited or not consented to, its right to participate in future oil and gas operations; (g) any agreement(s) under which Seller has received an advance payment, prepayment or similar deposit and has a refund obligation with respect to any natural gas or products purchased, sold, gathered, processed or marketed by or for Seller out of the Purchased Assets; (h) any contract that requires Seller to expend more than $100,000 in any year in connection with the Purchased Assets, (i) any option to purchase or call on the Hydrocarbons produced from the Purchased Assets; (j) any title retention agreement(s) or Lien(s) affecting any of the Equipment; (k) any agreement creating an area of mutual interest with respect to the Subject Interests; (l) any contract that can reasonably be expected to result in an aggregate revenue to Seller of more than $100,000 in any year in connection with the Purchased Assets; (m) any non-compete or similar restrictive agreements related to the Purchased Assets that would restrict, limit or prohibit the manner in which, or the locations in which, Buyer or any of its Affiliates conducts business; (n) any Lease(s) with a remaining primary term of less than one year or that contains a performance obligation that must be commenced within one year to maintain the Lease; and (o) any surface use agreement to which Seller is a party or to which any of the Purchased Assets are subject other than as provided in the applicable Lease. Buyer has been provided access to true and complete copies of all Material Contracts. Except as set forth on Schedule 3.5, Seller is not in Part 3.9 default under the terms of the Company Disclosure Scheduleany Material Contract, as of the date of this Agreementand, neither the Company nor any Subsidiary of the Company to Seller’s Knowledge there is a party to no default existing or is bound continuing by any Contract:
(i) that other party under the terms of any Material Contract and each Material Contract is a “in full force and effect in all material contract” (as such term respects and is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness valid and enforceable by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire Seller in accordance with their terms during its terms, assuming the Pre-Closing Period (excludingdue authorization, for the avoidance of doubt, early termination), all execution and delivery of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge by each of the Company, each other party thereto, and in full force and effect, counterparties to those agreements (except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other or similar applicable law affecting Laws relating to or limiting creditors’ rights generally and or by general principles application of equityequitable principles). No Acquired Corporation has, and to the knowledge Seller has not received or given any unresolved written notice of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of amendment, waiver, price redetermination, market out, curtailment or termination with respect to any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Maxwell Resources, Inc.), Asset Purchase Agreement (Exco Resources Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 3.16 of the Company Disclosure Schedule, Letter lists each of the following types of Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contracthereof:
(i1) that is any Contract required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act of the Exchange Act)1933, as amended;
(ii2) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing Contract that limits in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in material respect the world;
(vi) relating to or evidencing Indebtedness, including any guarantee ability of Indebtedness by the Company or any Subsidiary of its Subsidiaries (or following the consummation of the Companytransactions contemplated hereby, Parent and its Subsidiaries) to compete in excess any line of $5,000,000business or with any Person or in any geographic area;
(vii3) any Contract that is obligates the Company or its Subsidiaries (or, following the consummation of the transactions contemplated hereby, Parent and its Subsidiaries) to conduct business with any third party on an Inbound License exclusive or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing onpreferential basis, or granting to, an Acquired Corporation that grants any future minimum take-or-pay requirements in excess Person other than the Company or any of $100,000, (B) granting its Subsidiaries “most favored nation,” “most favored customer” status or similar status rights;
(4) any Contract to which any PersonAffiliate, officer, director, employee or consultant of the Company is a party or beneficiary (C) granting any type of exclusive rights except with respect to any Personloans to, other than sales representationor deposits from, distributiondirectors, licensing officers and similar contracts employees entered into in the ordinary course of business and in accordance with all applicable regulatory requirements with respect to it);
(5) any Contract that relate solely limits the payment of dividends by the Company or any of its Subsidiaries;
(6) any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership, limited liability company or other similar agreement or arrangement;
(7) any Contract relating to Indebtedness (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under repurchase agreements, in each case incurred in the ordinary course of business);
(8) any Contract that by its terms calls for aggregate payments or receipt by the Company and its Subsidiaries under such Contract of more than $250,000 over the remaining term of such Contract (other than pursuant to Loans originated or purchased by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice);
(9) any Contract that provides for potential indemnification payments by the Company or any of its Subsidiaries or the potential obligation of the Company or any of its Subsidiaries to repurchase Loans;
(10) any Contract that provides any rights to investors in the Company’s publishing business and do not relate , including registration, preemptive or anti-dilution rights or rights to designate members of or observers to the Company’s book manufacturing businessCompany Board;
(11) any Contract that is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $100,000 per annum (other than any such contracts which are terminable by the Company or its Subsidiaries on 60 days or less notice without any required payment or other conditions (other than the condition of notice));
(12) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” that would be implicated by the Merger, or that would or would reasonably be expected to prevent, materially delay or impair the consummation of the transactions contemplated by this Agreement;
(D13) requiring an Acquired Corporation any Contract in respect of any (i) Owned Real Property or (ii) leased premises with respect to purchase all which the Company or any of its requirements of Subsidiaries is either a specified good landlord or service from any Persontenant (or subtenant); or
(ix14) any collective bargaining agreement Contract not of the type described in clauses (1) through (13) above and which involved the payments by, or other Contract with a labor organization to, the Company or works council representing any of its employees Subsidiaries in the fiscal year ended December 31, 2013, or which could reasonably be expected to involve such payments during the fiscal year ending December 31, 2014, of more than $100,000 (other than pursuant to Loans originated or purchased by the Company or any other similar Contract.
(b) of its Subsidiaries in the ordinary course of business consistent with past practice). Each contract, arrangement, commitment or understanding Contract of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(aclauses (1) of the Company Disclosure Schedule, through (14) is referred to herein as a “Material Contract.” Except A true and complete copy of each Material Contract has been made available to Parent prior to the date hereof (it being understood that documents publicly filed in their entirety (without redaction or omission of any portion thereof) with the SEC shall be deemed to have been made available for purposes of this representation).
(i) Each Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are Contract is valid and binding on the applicable Acquired Corporation Company and any of its Subsidiaries to the extent such Subsidiary is a party thereto, as applicable, and to the knowledge of the Company, each other party thereto, and is in full force and effect and enforceable in accordance with its terms, except where the failure to be valid, binding, enforceable and in full force and effect, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company; (ii) the Company and each of its Subsidiaries, and, to the knowledge of the Company, each other party thereto, and in full force and effecthas performed all obligations required to be performed by it under each Material Contract, except as may where any noncompliance, individually or in the aggregate, has not had and would not reasonably be limited expected to have a Material Adverse Effect on the Company; and (iii) there is no default under any Material Contract by bankruptcythe Company or any of its Subsidiaries or, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the any other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any actparty thereto, and no event or condition existshas occurred that constitutes, which with or, after notice or without notice, lapse of time or both both, would constitute constitute, a material defaultdefault on the part of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto under the provisions of any such Material Contract, except in each case for those violations and defaults whichwhere any such default, event or condition, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of Effect on the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractCompany.
Appears in 3 contracts
Sources: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.), Merger Agreement (SP Bancorp, Inc.)
Contracts. (a) Except as set forth in Part 3.9 Section 2.14 of the Company Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Company or WRG is a party as of the date of this Agreement, neither Agreement (other than the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:Transaction Documents (as hereinafter defined)):
(i) that any agreement (or group of related agreements) for the lease of personal property from or to third parties (A) which provides for lease payments in excess of $25,000 per annum or (B) which has a remaining term longer than 12 months and is a “material contract” not cancellable without penalty by the Company on sixty (as such term is defined in Item 601(b)(1060) of Regulation S-K of the Exchange Act)days or less prior written notice;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $25,000, or (B) in which the Acquired Corporations (taken as Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, each other party theretoestablishes a material joint venture or legal partnership;
(iv) any agreement (or group of related agreements) under which it has created, and in full force and effectincurred, except as assumed or guaranteed (or may be limited by bankruptcycreate, insolvencyincur, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of equity. No Acquired Corporation hasits assets, and tangible or intangible;
(v) any agreement that purports to the knowledge of the Company, none of the other parties thereto have, violated limit in any material respect the right of the Company to engage in any provision ofline of business, or committed to compete with any person or failed to perform operate in any actgeographical location;
(vi) any employment agreement, and no event executive agreement (including without limitation Chief Operating Officer agreement) or condition existsconsulting agreement which provides for payments in excess of $50,000 per annum (other than employment or consulting agreements terminable on less than thirty (30) days’ notice);
(vii) any agreement involving any officer, which with director or without notice, lapse stockholder of time the Company or both would constitute a material default, any affiliate (as defined in Rule 12b-2 under the provisions Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which have been made available to Parent);
(viii) any Material Contractagreement or commitment for capital expenditures in excess of $25,000, except in each case for those violations a single project (it being represented and defaults which, individually or warranted that the liability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate, aggregate for all projects);
(ix) any agreement under which the consequences of a default or termination would not reasonably be expected to result in have a Company Material Adverse Effect;
(x) any agreement which contains any provisions requiring the Company to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, and no Acquired Corporation has received written notice sale or license of products entered into in the Ordinary Course of Business);
(xi) any agreement, other than as contemplated by this Agreement, relating to the future sales of securities of the foregoing. Company; and
(xii) any other agreement (or group of related agreements) (A) under which the Company is obligated to make payments or incur costs in excess of $25,000 in any year or (B) not entered into in the Ordinary Course of Business, in each case which is not otherwise described in clauses (i) through (xi).
(b) The Company has delivered or made available to the Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct accurate copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.agreement listed in Section 2.14 of the Company Disclosure Schedule. With respect to each agreement so listed, except as set forth in Section 2.14
Appears in 3 contracts
Sources: Agreement and Plan of Merger and Reorganization (Ds Healthcare Group, Inc.), Merger Agreement (Ds Healthcare Group, Inc.), Merger Agreement (Ds Healthcare Group, Inc.)
Contracts. (a) Except as set forth in Part 3.9 Section 2.15 of the Company Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Company or any Company Subsidiary is a party as of the date of this Agreement, neither Agreement (other than the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:Transaction Documentation (as hereinafter defined)):
(i) that any agreement (or group of related agreements) for the lease of personal property from or to third parties (A) which provides for lease payments in excess of $100,000 per annum and (B) which has a remaining term longer than 12 months and is a “material contract” not cancellable without penalty by the Company on sixty (as such term is defined in Item 601(b)(1060) of Regulation S-K of the Exchange Act)days or less prior written notice;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $100,000 per annum, or (B) in which the Acquired Corporations (taken as Company or any Company Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase goods or services exclusively from a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, establishes a material joint venture or legal partnership;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $100,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement that purports to limit in any material respect the right of the Company to engage in any line of business, or to compete with any person or operate in any geographical location;
(vi) any employment agreement or consulting agreement which provides for payments in excess of $250,000 per annum (other than employment or consulting agreements terminable on less than thirty (30) days’ notice);
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which have been made available to Parent);
(viii) any agreement or commitment for capital expenditures in excess of $100,000, for a single project (it being represented and warranted that the liability under all undisclosed agreements and commitments for capital expenditures does not exceed $500,000 in the aggregate for all projects);
(ix) any other agreement required to be filed as an exhibit to the Super 8-K;
(x) any agreement, other than as contemplated by this Agreement, relating to the future sales of securities of the Company or any Company Subsidiary; and
(xi) any other agreement (or group of related agreements) (A) under which the Company is obligated to make payments or incur costs in excess of $100,000 in any year or (B) not entered into in the Ordinary Course of Business, in each other party theretocase which is not otherwise described in clauses (i) through (xi).
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.15 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.15 of the Company Disclosure Schedule: (i) the agreement is a legal, valid, binding and enforceable obligation of the Company and in full force and effect, except as such enforceability may be limited by under applicable bankruptcy, insolvencyinsolvency and similar laws, moratorium and other similar applicable law rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity whether applied in a court of law or a court of equity; (ii) the agreement will not, as a result of the execution and delivery by the Company of this Agreement or the Transaction Documentation, or the consummation by the Company of the transactions contemplated hereby or thereby, cease to be a legal, valid, binding and enforceable obligation of the Company, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity. No Acquired Corporation has, whether applied in a court of law or a court of equity, or to be in full force and effect in accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) neither the Company nor any Company Subsidiary nor, to the knowledge of the Company, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or any Company Subsidiary or, to the knowledge of the Company, any other party under the provisions of any Material Contractsuch contract, except in each case for those violations any breach, violation or default that has not had and defaults which, individually or in the aggregate, would not reasonably be expected anticipated to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Miramar Labs, Inc.), Merger Agreement (Miramar Labs, Inc.)
Contracts. (aSection 2(k) Except as set forth in Part 3.9 of the Company Disclosure ScheduleSchedule lists the following contracts, as agreements, and other written arrangements (other than with advertisers for the sale of air time) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, employment agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Stations;
(viii) (A) imposing onany arrangement with any third party under which it has created, incurred, assumed, or granting to, guaranteed an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, obligation to provide advertising or air time (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person"Advertising Contract"); or
(ix) any collective bargaining agreement other written arrangement (or other Contract with group of related written arrangements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. Other than Advertising Contracts, the Seller has delivered to the Buyer a labor organization or works council representing any correct and complete copy of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(k) of the Company Disclosure ScheduleSchedule (as amended to date). Other than Advertising Contracts, with respect to each written arrangement so listed: (A) the written arrangement is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludinglegal, for the avoidance of doubtvalid, early termination)binding, all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and to enforceable and in full force and effect on identical terms following the knowledge of the Company, none of the other parties thereto have, violated Closing; (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually or in the aggregateif reduced to written form, would not reasonably be expected required to result be listed in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any Section 2(k) of the foregoing. The Company has made available to Parent or Parent’s Representatives in Disclosure Schedule under the Data Room prior to the date terms of this Agreement a complete and correct copy (including any material amendmentSection 2(k). No advertiser of the Stations has indicated within the past year that it will stop, modificationor decrease the rate of, extension or renewal with respect thereto) of each Material Contractbuying services from them.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. (a) Except as set Schedule 4.10(a) sets forth in Part 3.9 a true, correct and complete list of the Company Disclosure Scheduleall Contracts, as of the date of this Agreementcommitments, neither the Company nor any Subsidiary of licenses, agreements, obligations or binding arrangements, whether oral or written, to which the Company is a party to or is bound by which any Contractof its assets or properties are bound:
(i) that under which the Company is indemnified for or against any liability, or under which the Company is or could be obligated to indemnify any Person and which involves a “material contract” (as such potential liability in excess of $10,000 or has a term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)more than six months;
(ii) pursuant to under which the Acquired Corporations (taken as a whole) received revenues for Company leases personal property from or to third parties under capitalized leases or under operating leases if the fiscal year ended September 27, 2014, term of such lease is more than six months or the financial obligation is reasonably expected to receive revenues in a future annual period, in excess of $10,000,00010,000 per year;
(iii) pursuant to for the purchase or sale of products or other personal property or for the furnishing or receipt of services (A) that calls for performance over a period of more than six months or (B) in which the Acquired Corporations Company has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from any Person (taken as in each case, with a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, value in excess of $2,500,00010,000 in the aggregate);
(iv) evidencing a capital expenditure in excess of $2,500,000(A) granting representation, marketing or distribution rights or (B) relating to Company Intellectual Property (including license, development or similar agreements);
(v) containing a covenant prohibiting under which the Company has created, incurred, assumed or restricting any Acquired Corporation from competing guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in any business or geographic areaexcess of $10,000, or from soliciting customers under which there is or employees, may be imposed a security interest or otherwise restricting any Acquired Corporation from carrying other Lien on any business anywhere of its assets, whether tangible or intangible (other than security interests or Liens granted in the worldfavor of Buyer);
(vi) relating to establishing or evidencing Indebtednessmaintaining any partnership, including joint venture or strategic alliance;
(vii) concerning any guarantee confidentiality or non-solicitation obligations of Indebtedness by the Company;
(viii) under which the Company is restricted from carrying on its business or any Subsidiary part thereof, or from competing in any line of business or with any Person;
(ix) with officers, directors, employees or consultants of the Company, in each case involving payments by the Company in excess of $5,000,00010,000 per annum;
(viix) that is an Inbound License involving any Affiliates of the Company;
(xi) under which the consequences of a default or Outbound Licensetermination would reasonably be expected to have, in each case, that either a Material Adverse Effect;
(xii) under which the Company will (A) grants exclusive rights to or receive aggregate payments from an Acquired Corporation or customers, (B) requires make aggregate payments to vendors or other suppliers or (C) make or receive aggregate payments to or from an Acquired Corporation any other Persons, in each case in excess of $250,00010,000 per annum;
(viiixiii) which is not terminable on sixty (A60) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, fewer days’ notice without cost or penalty; and
(Bxiv) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts not entered into in the ordinary course of business and not otherwise disclosed on Schedule 4.10(a) in response to any of the foregoing clauses; and The Company has delivered to Buyer true, correct and complete copies of each Contract in existence as of the date hereof. To the extent that relate solely to the Company’s publishing business and written Contracts do not relate exist, the Company has delivered to Buyer accurate summaries of the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all material terms and conditions of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contractsuch oral Contracts.
(b) Each contractExcept as disclosed on Schedule 4.10(b), arrangement, commitment or understanding (i) each Contract existing as of the type required to be described in Section 3.9(a)date hereof is a legal, whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge obligation of the Company, each other party thereto, and enforceable against the Company in full force and effect, accordance with its terms (except as enforcement may be limited by bankruptcy, insolvency, moratorium and other reorganization, moratorium, fraudulent transfer or conveyance or similar applicable law affecting laws relating to or limiting creditors’ rights generally and or by general equitable principles of equity. No Acquired Corporation hasrelating to enforceability), and (ii) to the knowledge Knowledge of the Company, none each Contract existing as of the date hereof is a legal, valid and binding obligation of the other parties thereto havethereto, violated enforceable against the other parties in any material respect any provision ofaccordance with its terms (except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or committed conveyance or failed similar laws relating to perform any actor limiting creditors’ rights generally or by equitable principles relating to enforceability) and is in full force and effect. The Company is and, to the Knowledge of the Company each other party to each Contract existing as of the date hereof are, in compliance with the terms thereof, and no default or event of default by the Company or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party thereto exists thereunder.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Real Goods Solar, Inc.), Stock Purchase Agreement (Real Goods Solar, Inc.)
Contracts. Schedule 4(ll) lists the following contracts and other agreements to which Borrower or ALSC is a party (acollectively, the “Contracts”):
(i) Except any agreement (or group of related agreements) for the lease of personal property to or from any Person;
(ii) any agreement (or group of related agreements) for the purchase, sale or license, as set forth applicable, of raw materials, commodities, supplies, products, software or other personal property or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in Part 3.9 excess of $5,000;
(iii) any agreement concerning a partnership, joint venture or limited liability company agreements (excluding investment portfolio transactions in the Company Disclosure ScheduleOrdinary Course of Business);
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation or under which it has imposed an Encumbrance on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement with or including Borrower or Borrower’s Affiliates;
(vii) any marketing agreement or similar arrangement between ALSC and any third party insurance carrier whereby ALSC has agreed to sell and solicit to the insurance buying public insurance products underwritten by such third party insurance carrier;
(viii) any agreement between ALSC or Borrower and a third party entity pursuant to which the third party entity has agreed to provide third party administrative services, including without limitation billing and collection of premium on behalf of ALSC;
(ix) any agreement relating to capital expenditures or purchases of assets or properties (other than purchase orders for such items in the Ordinary Course of Business);
(x) any agreement involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which has not been fully performed, satisfied and discharged, other than any such contracts concerning the routine collection of debts entered into in the Ordinary Course of Business;
(xi) any agreement granting to any Person a right of first refusal or option to purchase or acquire any capital stock, assets or rights of ALSC;
(xii) all Agent Contracts under which ALSC is obligated as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party Agreement to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)pay commissions;
(iixiii) pursuant any other contract that is material to the business and is not terminable upon 90 calendar days’ written notice without penalty or premium;
(xiv) any other agreement (or group of related agreements) other than Insurance Policies, the performance of which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, involves consideration in excess of $10,000,000;
(iii) pursuant 25,000. Borrower and ALSC have delivered to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014Lender, or is reasonably expected have given Lender an opportunity to make expenditures review, a correct and complete copy of each Contract listed in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating Schedule 4(ll). With respect to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either such Contract: (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing onthe Contract is legal, or granting tovalid, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000binding, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, enforceable and in full force and effect; (B) ALSC is not in breach and, except as may be limited by bankruptcyto the Knowledge of Borrower or ALSC, insolvency, moratorium and no other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasparty is in breach or default, and to the knowledge of the Company, none of the other parties thereto have, violated in neither Borrower nor ALSC has any material respect Knowledge that any provision of, or committed or failed to perform any act, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material breach or default, or permit termination, modification or acceleration, under the provisions of Contract that would have a material adverse effect ; and (C) no party has repudiated any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any provision of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Vespoint LLC), Loan, Convertible Preferred Stock and Convertible Senior Secured Note Purchase Agreement (Midwest Holding Inc.)
Contracts. (aSection 2(i) Except as set forth in Part 3.9 of the Company Disclosure Schedule lists the following contracts, agreements, and other written arrangements (other than with advertisers for the sale of air time which are listed in Section 2(i) of the Disclosure Schedule, as of ) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company is Sellers are a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, compensation agreement, employment agreement, commission agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Sellers or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Stations;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess written arrangement concerning a guaranty by the Sellers of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to the obligations of any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Personparty; or
(ix) any collective bargaining agreement other written arrangement (or other Contract with group of related written arrangements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. The Sellers have delivered to the Buyers a labor organization or works council representing any correct and complete copy of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(i) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed which constitutes an Assumed Contract: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and enforceable and in full force and effect on identical terms following the Closing (if the arrangement has not expired according to the knowledge of the Company, none of the other parties thereto have, violated its terms); (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Sellers are not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually if reduced to written form, would be required to be listed in Section 2(i) of the Disclosure Schedule under the terms of this Section 2(i). Except for the Assumed Contracts, the Buyers shall not have any Liability or obligations for or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice respect of any of the foregoing. The Company has made available to Parent or Parent’s Representatives contracts set forth in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect theretoSection 2(i) of each Material Contractthe Disclosure Schedule or any other contracts or agreements of the Seller. No advertiser of the Stations has indicated within the past year that it will stop, or decrease the rate of, buying services from them.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. (a) Except as set forth in Part 3.9 Each Assignor has provided to Lone Star or has given Lone Star access to accurate and complete copies of all of the Company Disclosure Schedule, as following agreements or documents to which such Assignor is subject and each of the date of this Agreement, neither the Company nor any Subsidiary of the Company which is a party to or is bound by any Contract:
listed on Schedule 3.1(m): (i) that is a “material contract” any lease (as such term is defined in Item 601(b)(10) whether of Regulation S-K of the Exchange Actreal or personal property);
; (ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues any agreement for the fiscal year ended September 27purchase of materials, 2014supplies, goods, services, equipment, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either other assets (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate providing for annual payments to or from an Acquired Corporation in excess by such Assignor of $250,000;
(viii) (A) imposing on, 10,000 or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000more, (B) granting “most favored nation,” “most favored customer” providing for aggregate payments by such Assignor of $25,000 or similar status to any Personmore, or (C) granting not terminable on thirty (30) days or less notice without penalty; (iii) any type partnership, joint venture, or other similar agreement or arrangement; (iv) any instruments or documents evidencing the issuance of exclusive any equity securities, warrants, rights or options to purchase equity securities of such Assignor; (v) any Personmanagement agreements; (vi) any instruments or documents evidencing or relating to Indebtedness, or guarantees of Indebtedness by such Assignor, and any security interest granted by such Assignor with respect thereto; (vii) any option, license, franchise, or similar agreement; (viii) any agency, dealer, sales representative, marketing, or other than sales representationsimilar agreement; (ix) any agreement that limits the freedom of any Assignor to compete in any line of business or with any Person or in any area that would limit the freedom of Assignee or any Affiliate of Assignee after the Closing Date; (x) any agreement with a holder of any Assignor's capital stock; (xi) any agreement with any director or officer of any Greenbriar Party; or (xii) any other agreement, distributioncommitment, licensing and similar contracts entered into arrangement, or plan not made in the ordinary course of business business. All such agreements, arrangements, commitments, guarantees and that relate solely other instruments are legal, valid and binding obligations of such Assignor, and to the Company’s publishing business and do not relate to the Company’s book manufacturing businesssuch Assignor's knowledge, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a)other parties thereto, whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire enforceable in accordance with their terms during terms; all payments required to be made thereunder have been made by the Pre-Closing Period (excludingparties required to do so, for except to the avoidance of doubtextent that any payments are being contested in good faith and are listed as such on Schedule 3.1(m); and no defenses, early termination)offsets or counterclaims thereto have been asserted in writing, all of the Material Contracts are valid and binding on the applicable Acquired Corporation andor, to the knowledge of the Companysuch Assignor's knowledge, each other party thereto, and in full force and effect, except as may be limited made by bankruptcyany party thereto other than such Assignor, insolvency, moratorium and other similar applicable law affecting creditors’ nor has such Assignor waived any substantial rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractthereunder.
Appears in 2 contracts
Sources: Master Settlement Agreement (Greenbriar Corp), Master Settlement Agreement (Greenbriar Corp)
Contracts. (a) Except as set forth in Part 3.9 Section 4.15(a) of the Company Disclosure ScheduleSchedule or as set forth in the SEC Reports, as of the date of this Agreement, neither the Company nor any Subsidiary of the no Acquired Company is a party to or is bound by any Contract:of the following (collectively, the “Material Contracts”):
(i) any contract that is a “material contract” (as such term is defined in Item 601(b)(10) involves the performance of Regulation S-K services or delivery of the Exchange Act);
(ii) pursuant to which the goods or materials by any Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or Company that is reasonably expected to receive revenues result in a future annual period, revenue to such Acquired Company in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere 50,000 in the world;
twelve (vi12) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by month period following the Company or any Subsidiary of the Company, in excess of $5,000,000;
Closing Date (vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into open purchase orders made in the ordinary course of business and distributor agreements that relate solely do not, by themselves, generate revenue);
(ii) any contract that involves the performance of services for, or delivery of goods or materials to, any Acquired Company that is reasonably expected to result in expenditures by such Acquired Company in excess of $50,000 in the Company’s publishing business and do not relate to twelve (12) month period following the Company’s book manufacturing Closing Date (other than open sales orders made in the ordinary course of business);
(iii) any agreement or contract for the employment of any Person on a full-time, part-time, consulting or other basis (A) providing annual cash or other compensation in excess of $100,000, or (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the Contemplated Transactions;
(iv) any agreement, promissory note, loan agreement, guaranty or indenture relating to Indebtedness of any Acquired Company or the mortgaging or pledging of any asset of or that evidences any Lien (other than Permitted Liens) on the assets of any Acquired Company;
(v) any agreement that restricts any Acquired Company from (A) engaging in any aspect of the Business, (B) participating or competing in any line of business or market, (C) freely setting prices for its products, services or technologies (including most favored customer pricing provisions), (D) requiring an Acquired Corporation engaging in any business in any market or geographic area or that grants any exclusive rights, rights of refusal, rights of first negotiation or similar rights to purchase all of its requirements of a specified good any party, or service from any Person; or(E) soliciting potential suppliers or customers;
(ixvi) any joint venture or partnership agreement involving a sharing of profits, losses, costs or liabilities by any Acquired Company with any other Person;
(vii) any agreement with any labor union, works council or similar labor organization, or any collective bargaining agreement or other Contract similar agreement with a labor organization or works council representing regarding any of its the employees of any Acquired Company;
(viii) any agreement between or among any Acquired Company, on the one hand, and any of the Acquired Companies’ respective officers, directors, employees or stockholders or any member of their immediate families, on the other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period hand (excluding, for the avoidance of doubt, early termination)agreements relating to the employment, all engagement or termination of employees of the Material Contracts are valid Acquired Companies);
(ix) any agreement with a Government Entity;
(x) any lease or agreement under which any Acquired Company is (A) lessee of or holds or operates any tangible personal property owned by any other Person in which the aggregate annual rental payments exceed $50,000, or (B) lessor of or permits any other Person to hold or operate any tangible personal property owned by any Acquired Company in which the aggregate annual rental payments exceed $50,000;
(xi) any agreement under which any Acquired Company licenses to or from another Person any Intellectual Property, other than “shrink wrap” and binding on the applicable agreements under which commercially available, off-the-shelf software is licensed to such Acquired Corporation and, Company; or
(xii) any other agreement that (A) is material to the knowledge conduct of the Business or the absence of which would have a Material Adverse Effect and (B) is not terminable by the Acquired Companies on sixty (60) days’ or less notice without penalty or cost to any Acquired Company.
(b) Seller has provided to Purchaser a true, correct and complete copy of each other party thereto, written Material Contract and a written description of the material terms of each oral Material Contract. Each Material Contract is in full force and effecteffect and, assuming the due execution by the other parties thereto, is a valid and binding obligation of the applicable Acquired Company, except to the extent any such Material Contract has expired or has been terminated in accordance with its terms and except as may be limited by (i) applicable insolvency, bankruptcy, insolvencyreorganization, moratorium and or other similar applicable law laws affecting creditors’ rights generally and by general (ii) applicable equitable principles of (whether considered in a proceeding at law or in equity). No Acquired Corporation hasCompany is in material violation or breach of or default under any Material Contract, and to the knowledge of the CompanySeller’s Knowledge, none of the other parties thereto haveto each Material Contract are not in material violation or breach of or default thereunder. No event has occurred that, violated in any material respect any provision of, with notice or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both both, would constitute a material defaultbreach of or material default under any Material Contract by any Acquired Company or, under to Seller’s Knowledge, by any other party thereto. None of the provisions of counterparties to any Material Contract has notified Seller or any Acquired Company in writing that it intends to terminate, cancel or not renew any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Communications Systems Inc), Securities Purchase Agreement (Lantronix Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 2.14 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company Disclosure Schedule, is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $10,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than 12 months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $10,000, or (C) in which the Acquired Corporations (taken as Company or any Subsidiary has granted manufacturing rights, "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as any agreement establishing a whole) made expenditures partnership or joint venture, or any business arrangement for the fiscal year ended September 27, 2014, distribution or is reasonably expected to make expenditures in a future annual period, in excess development of $2,500,000products;
(iv) evidencing any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $10,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any agreement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic areanoncompetition, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in excluding the worldCompany's standard form of Nondisclosure and Noncompete Agreement entered into with each employee and consultant of the Company and provided to the Buyer pursuant to Section 2.19 hereof;
(vi) relating to any employment or evidencing Indebtednessconsulting agreement, including any guarantee excluding the Company's standard form of Indebtedness by Nondisclosure and Noncompete Agreement entered into with each employee and consultant of the Company or any Subsidiary of and provided to the Company, in excess of $5,000,000Buyer pursuant to Section 2.19 hereof;
(vii) that is any agreement involving any officer, director or stockholder of the Company or any affiliate (an Inbound License or Outbound License"Affiliate"), as defined in each caseRule 12b-2 under the Securities Exchange Act of 1934, that either as amended (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the "Exchange Act"), thereof;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in agreement under which the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements consequences of a specified good default or service from any Person; ortermination would reasonably be expected to have a Company Material Adverse Effect;
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing which contains any of its employees or provisions requiring the Company to indemnify any other similar Contractparty thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business); and
(x) any other agreement (or group of related agreements) either involving more than $10,000 or not entered into in the Ordinary Course of Business.
(b) Each contract, arrangement, commitment The Company has delivered to the Buyer a complete and accurate copy of each agreement listed in Section 2.13 or understanding Section 2.14 of the type required Disclosure Schedule. With respect to be described each agreement so listed: (i) the agreement is legal, valid, binding, in Section 3.9(a)full force and effect and enforceable by the Company in accordance with its terms, whether or not subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and rules of law governing injunctive relief and other equitable remedies; (ii) subject to the giving of notices and receipt of consents set forth in Part 3.9(a) Section 2.4 of the Company Disclosure Schedule, is referred the agreement will continue to herein as a “Material Contract.” Except for Material Contracts that expire be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with their the terms during thereof as in effect immediately prior to the Pre-Closing Period (excludingunless the agreement would, for by its express terms, expire prior to the avoidance of doubt, early termination), all Closing) and the consummation of the Material Contracts are valid transactions contemplated hereby will not cause a default under or result in the acceleration of the obligations under the agreement; and binding on (iii) the applicable Acquired Corporation andCompany is not, nor, to the knowledge of the Company, each is any other party theretoparty, in breach or violation of, or default under, any such agreement, and in full force and effectno event has occurred, except as may be limited by bankruptcyis pending or, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none is threatened, which, after the giving of the other parties thereto havenotice, violated in any material respect any provision ofwith lapse of time, or committed or failed to perform any actotherwise, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material defaultbreach or default by the Company or, to the knowledge of the Company, any other party under the provisions of such contract, subject to any Material Contractconflicts, except in each case for those breaches, violations and or defaults which, individually or in the aggregate, has not had and would not be reasonably be expected likely to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Unisphere Networks Inc), Merger Agreement (Unisphere Networks Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 2.13(a) of the Company Disclosure ScheduleSchedule lists the following agreements (written or oral) currently in effect (either in whole or in part, as of the date of this Agreement, neither the Company nor any Subsidiary of including agreements with ongoing post-termination “tails” and ongoing post-termination obligations) to which the Company is a party to or is bound by any Contractparty:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of twenty-five thousand dollars ($25,000) per annum or having a “material contract” remaining term longer than six (as such term is defined in Item 601(b)(106) of Regulation S-K of the Exchange Act)months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase of products or for the receipt of services (A) which calls for performance over a period of more than one (1) year, (B) which involves more than twenty-five thousand dollars ($25,000), or (C) in which the Acquired Corporations (taken as Company has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which any agreement providing for any royalty, milestone or similar payments by the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000Company;
(iv) evidencing any agreement concerning the establishment or operation of a capital expenditure in excess of $2,500,000partnership, joint venture or limited liability company;
(v) containing a covenant prohibiting any agreement (or restricting any Acquired Corporation from competing in any business group of related agreements) under which the Company has created, incurred, assumed or geographic areaguaranteed (or may create, incur, assume or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldguarantee) Indebtedness;
(vi) relating to any agreement for the disposition of any significant portion of the assets or evidencing Indebtedness, including any guarantee business of Indebtedness by the Company (other than sales of products in the Ordinary Course of Business) or any Subsidiary agreement for the acquisition of the Company, assets or business of any other entity (other than purchases of inventory or components in excess the Ordinary Course of $5,000,000Business);
(vii) that is an Inbound License any employment, independent contractor or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000consulting agreement;
(viii) (A) imposing onany agreement, plan, or granting toprogram providing for severance, an Acquired Corporation any future minimum takeretention payments, change in control payments or transaction-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orbased bonuses;
(ix) any collective bargaining agreement with a third party concerning Intellectual Property developments, confidentiality, non-competition and/or non-solicitation;
(x) any settlement agreement or other Contract settlement-related agreement (including any agreement in connection with a labor which any employment-related claim is settled);
(xi) any agreement with any professional employer organization or works council representing similar arrangements;
(xii) any agreement involving any current or former officer, director or stockholder of the Company or an Affiliate thereof;
(xiii) any agreement under which the consequences of a default or termination would reasonably be expected in the future to be material to the Company;
(xiv) any agreement which contains any provisions requiring the Company to indemnify any other party;
(xv) any agreement relating to the research, development, commercialization, clinical trial, manufacturing, distribution, supply, marketing or co-promotion of any products, product candidates (including the Product) or devices in development by or which has been or which is being researched, developed, marketed, distributed, supported, sold or licensed out, in each case by or on behalf of the Company;
(xvi) any agreement that purports to bind or otherwise could bind any Affiliate of the Buyer or any of its employees subsidiaries (other than the Company) in any way, including prohibiting such Affiliate from engaging in any business that they would otherwise have been permitted to engage in;
(xvii) any agreement under which the Company is restricted or prohibited from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, or otherwise engaging in a material aspect of its business, in any geographic area, during any period of time or with any Person, or any segment of the market or line of business;
(xviii) any agreement which would entitle any third party to receive a license or any other similar Contractright to Intellectual Property of the Buyer or any of the Buyer’s Affiliates following the Closing; and
(xix) any other agreement (or group of related agreements) either involving more than twenty-five thousand dollars ($25,000) or not entered into in the Ordinary Course of Business.
(b) Each contractThe Company has delivered to the Buyer a complete and accurate copy of (i) each agreement listed in Section 2.11, arrangement, commitment Section 2.12 or understanding Section 2.13 of the type Disclosure Schedule and (ii) a complete and accurate list of any offer letters for current employees issued by the Company, and a copy of any such offer letter has heretofore been provided to the Buyer. With respect to each agreement so listed or required to be described listed: (A) the agreement is legal, valid, binding and enforceable and in Section 3.9(a)full force and effect, whether or not set forth in Part 3.9(asubject to the Bankruptcy and Equity Exception; (B) of neither the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andnor, to the knowledge of the Company, each any other party theretoparty, is in breach or violation of, or default under, any such agreement, and in full force and effectno event has occurred, except as may be limited by bankruptcyis pending or, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none is threatened, which, after the giving of the other parties thereto havenotice, violated in any material respect any provision ofwith lapse of time, or committed or failed to perform any actotherwise, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material defaultbreach or default by the Company or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any knowledge of the foregoing. The Company has made available Company, any other party under such agreement; and (C) such agreement will continue to Parent or Parent’s Representatives be legal, valid, binding, enforceable and in full force and effect immediately following the Data Room Closing in accordance with the terms thereof as in effect immediately prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractClosing.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement (Amag Pharmaceuticals Inc.)
Contracts. (aSection 2(j) Except as set forth in Part 3.9 of the Company Disclosure Schedule lists the following contracts, agreements, and other written arrangements (other than with advertisers for the sale of air time which are listed in Section 2(r) of the Disclosure Schedule, as of ) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, compensation agreement, employment agreement, commission agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Station;
(viii) any other written arrangement (Aor group of related written arrangements) imposing on, either involving more than $5,000 or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts not entered into in the ordinary course Ordinary Course of business and that relate solely Business. The Seller has delivered to the Company’s publishing business Buyer a correct and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all complete copy of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(j) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed which constitutes an Assumed Contract: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and enforceable and in full force and effect on identical terms following the Closing (if the arrangement has not expired according to the knowledge of the Company, none of the other parties thereto have, violated its terms); (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually if reduced to written form, would be required to be listed in Section 2(j) of the Disclosure Schedule under the terms of this Section 2(j). Except for the Assumed Contracts, the Buyer shall not have any Liability or obligations for or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice respect of any of the foregoing. The Company has made available to Parent or Parent’s Representatives contracts set forth in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect theretoSection 2(j) of each Material Contractthe Disclosure Schedule or any other contracts or agreements of the Seller. No advertiser of the Station has indicated to Seller within the past year that it will stop, or decrease the rate of, buying services from them.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. Schedule 6.18 of the Company Disclosure Statement sets forth the following oral or written contracts and other agreements to which the Company or any of its Subsidiaries is a party:
(a) Except any agreement (or group of related agreements, with the same third party or any of its Affiliates) for the lease of personal property providing for lease payments in excess of One Hundred Thousand Dollars ($100,000) per annum;
(b) any agreement (or group of related agreements for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which involve consideration in excess of One Hundred Thousand Dollars ($100,000) per annum; PROVIDED, HOWEVER, that this clause (b) shall not include any employment agreement included pursuant to clause (e) below or excluded from clause (e) below by virtue of the monetary threshold set forth therein;
(c) any agreement concerning a partnership or joint venture;
(d) any agreement (or group of related agreements, with the same third party or any of its Affiliates) under which the Company or any of its Subsidiaries has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of One Hundred Thousand Dollar ($100,000) per annum or under which it has imposed a lien on any of its material assets, tangible or intangible;
(e) any agreement with an employee of the Company or any of its Subsidiaries, providing for a base salary per annum in excess of One Hundred Thousand Pounds Sterling ((pound)100,000);
(f) any other agreement (or group of related agreements with the same third party) the performance of which involves consideration in excess of One Hundred Thousand Dollars ($100,000) per annum; PROVIDED HOWEVER, that this clause (f) shall not include any employment agreement excluded from clause (e) above by virtue of the monetary threshold set forth therein. The foregoing are referred to hereafter as the "Material Contracts". With respect to the Material Contracts, except as set forth in Part 3.9 Schedule 6.18 of the Company Disclosure ScheduleStatement: (i) all are in full force and effect against the Company or any of its Subsidiaries in accordance with their terms, except that such enforceability may be subject to bankruptcy, insolvency and other similar laws effecting debtors' rights or creditors' rights generally and except that the remedies of specific performance, injunction and other forms of equitable relief may not be available; (ii) neither the Company nor any of its Subsidiaries and to the Company's knowledge no other party thereto is, in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; (iii) neither the Company nor any of its Subsidiaries has assigned any of its rights or obligations under any of the Material Contracts; (iv) neither the Company nor any of its Subsidiaries has received any outstanding notice of cancellation or termination in connection with any of them; and (v) neither the Company nor any of its Subsidiaries is, and to the Company's knowledge no party thereto is the subject of bankruptcy proceedings, nor has had a trustee appointed on its behalf or is insolvent. The Company has delivered to the Parent and Merger Sub a correct and complete copy of each written Material Contract (as of amended to the date of this Agreement), neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues except for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying Coop Agreements and Conduit Agreements listed on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) Schedule 6.11 of the Company Disclosure ScheduleStatement, is and a written summary setting forth the terms and conditions of each oral agreement constituting a Material Contract referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all Schedule 6.18 of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractDisclosure Statement.
Appears in 2 contracts
Sources: Merger Agreement (Bison Acquisition Corp), Merger Agreement (Entertainment Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 2.12 of the Company Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Company or any Company Subsidiary is a party as of the date of this Agreement, neither Agreement (other than the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:Transaction Documentation (as hereinafter defined)):
(i) that any agreement (or group of related agreements) for the lease of personal property from or to third parties which provides for lease payments in excess of $250,000 per annum and which has a remaining term longer than 12 months and is a “material contract” not cancellable without penalty by the Company on sixty (as such term is defined in Item 601(b)(1060) of Regulation S-K of the Exchange Act)days or less prior written notice;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $250,000, or (B) in which the Acquired Corporations (taken as Company or any Company Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, establishes a material joint venture or legal partnership;
(iv) any agreement that purports to limit in any material respect the right of the Company to engage in any line of business, or to compete with any person or operate in any geographical location;
(v) any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which have been made available to Parent);
(vi) any agreement or commitment for capital expenditures in excess of $250,000, for a single project (it being represented and warranted that the liability under all undisclosed agreements and commitments for capital expenditures does not exceed $1,000,000 in the aggregate for all projects); and
(vii) any other agreement (or group of related agreements) under which the Company is obligated to make payments or incur costs in excess of $250,000 in any year.
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each other party theretoagreement listed in Section 2.12 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.12 of the Company Disclosure Schedule: (i) the agreement is a legal, valid, binding and enforceable obligation of the Company and in full force and effect, except as such enforceability may be limited by under applicable bankruptcy, insolvencyinsolvency and similar laws, moratorium and other similar applicable law rules or regulations affecting creditors’ rights and remedies generally and by to general principles of equity whether applied in a court of law or a court of equity. No Acquired Corporation has; and (ii) neither the Company nor any Company Subsidiary nor, and to the knowledge of the Company, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or any Company Subsidiary or, to the knowledge of the Company, any other party under the provisions of any Material Contractsuch contract, except in each case for those violations any breach, violation or default that has not had and defaults which, individually or in the aggregate, would not reasonably be expected anticipated to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (ViewRay, Inc.), Merger Agreement (ViewRay, Inc.)
Contracts. (aSection 2(k) Except as set forth in Part 3.9 of the Company Disclosure Schedule lists the following contracts, agreements, and other written arrangements (other than with advertisers for the sale of air time which are listed in Section 2(s) of the Disclosure Schedule, as of ) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, compensation agreement, employment agreement, commission agreement or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Stations;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess written arrangement concerning a guaranty by the Seller of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to the obligations of any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orparty;
(ix) any collective bargaining agreement other written arrangement (or other Contract with a labor organization group of related written arrangements) either involving more than $5,000 or works council representing any not entered into in the Ordinary Course of its employees or any other similar Contract.Business; and
(bx) Each contract, arrangement, commitment any written arrangement involving the lease of furniture or understanding equipment. The Seller has delivered to the Buyers a correct and complete copy of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(k) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed which constitutes an Assumed Contract: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will, except as may assuming any necessary consents to assignment have been obtained, continue to be limited by bankruptcylegal, insolvencyvalid, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and to enforceable and in full force and effect on identical terms following the knowledge of the Company, none of the other parties thereto have, violated Closing; (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not bound by any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually if reduced to written form, would be required to be listed in Section 2(k) of the Disclosure Schedule under the terms of this Section 2(k). Except for the Assumed Contracts, the Buyers shall not have any Liability or obligations for or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice respect of any of the foregoing. The Company has made available to Parent or Parent’s Representatives contracts set forth in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect theretoSection 2(k) of each Material Contractthe Disclosure Schedule or any other contracts or agreements of the Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. (a) Except as set forth in Part 3.9 of Parent has made available to the Company Disclosure Scheduletrue, correct and complete copies, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company following Contracts to which Parent or any of its Subsidiaries is a party to or is bound by any Contractparty:
(i) that is a each “material contract” (as such term is defined in Item 601(b)(1010.C and in Instructions As To Exhibits of Form 20-F) to which Parent or any of Regulation S-K of the Exchange Act)its Subsidiaries is a party to or bound;
(ii) pursuant each Contract not contemplated by this Agreement that limits the ability of Parent or any of its Subsidiaries or Affiliates to which engage in or compete with any line of business in any location or with any Person in any material manner;
(iii) each Contract that creates a partnership, joint venture or any strategic alliance with respect to the Acquired Corporations Company or any of its Subsidiaries;
(taken as a wholeiv) received revenues each employment, consulting, services or similar Contract with any employee or independent contractor of Parent or any of its Subsidiaries involving more than $500,000 of annual compensation;
(v) each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, Indebtedness individually in excess of $10,000,000;
(iiivi) pursuant each Contract entered into since January 1, 2024 that relates to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27acquisition or disposition, 2014directly or indirectly, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business (whether by merger, amalgamation, sale of stock, sale of assets or geographic area, otherwise) or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtednessmaterial assets, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
vessel (vii) that is an Inbound License or Outbound License, in each case, that either other than (A) grants exclusive rights to or from an Acquired Corporation this Agreement or (B) requires aggregate payments to acquisitions or from an Acquired Corporation in excess dispositions of $250,000;
supplies, inventory, merchandise or products (viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into vessels) in the ordinary course of business and or that relate solely to are obsolete, worn out, surplus or no longer used or useful in the Company’s publishing conduct of business and do not relate to the Company’s book manufacturing businessof Parent or its Subsidiaries), including also any such Contract whenever entered into that includes provisions that remain in effect in respect of “earn-outs” or deferred or contingent consideration;
(vii) each ship-sales, memorandum of agreement, bareboat charter, or (D) requiring an Acquired Corporation to purchase all other vessel acquisition Contract entered into since January 1, 2024 for Newbuildings and secondhand vessels contracted for by Parent or any of its requirements Subsidiaries (other than Company Owned Vessels) and other Contracts entered into since January 1, 2024 with respect to Newbuildings of a specified good Parent or service from any Person; orof its Subsidiaries and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) each pool agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Parent Vessel;
(ix) any Contract with a Third Party for the charter of any Parent Vessel;
(x) each collective bargaining agreement or other Contract with a labor organization union to which Parent or works council representing any of its employees Subsidiaries is a party or otherwise bound;
(xi) each Contract that provides for indemnification by Parent or any of its Subsidiaries to any Person other than a Contract entered into in the ordinary course of business;
(xii) each Contract pursuant to which Parent or any of its Subsidiaries spent or received, in the aggregate, more than $2,500,000 during the twelve (12) months prior to the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $2,500,000 during the twelve (12) months immediately after the date hereof;
(xiii) each Contract to which Parent or any of its Subsidiaries is a party or otherwise bound that contains a so-called “most favored nations” provision or similar Contractprovisions requiring Parent or its Affiliates to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xiv) each Contract involving a standstill or similar obligation of Parent or any of its Subsidiaries.
(b) Each contract, arrangement, commitment or understanding of the type required Except as would not reasonably be expected to be described in Section 3.9(a)material to Parent and its Subsidiaries, whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein taken as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period whole, (excluding, for the avoidance of doubt, early termination), all i) each of the Material Contracts are valid and binding on the applicable Acquired Corporation andis valid, to the knowledge of the Companybinding, each other party thereto, enforceable and in full force and effecteffect with respect to Parent and its Subsidiaries, and to the Knowledge of Parent, the other parties thereto, except as to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium the Equitable Exceptions and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasexcept for any Material Contracts that have expired or been terminated after the date hereof in accordance with its terms, and (ii) neither Parent nor any of its Subsidiaries, nor to the knowledge Knowledge of the CompanyParent any other party to a Material Contract, none of the other parties thereto have, has violated in any material respect any provision of, or committed taken or failed to perform take any actact which, and no event or condition exists, which with or without notice, lapse of time time, or both both, would constitute a material defaultbreach or default under, under the provisions or give rise to any right of any cancellation or termination of or consent under, such Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation neither Parent nor any of its Subsidiaries has received written notice of that it has breached, violated or defaulted under any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (CMB.TECH Nv), Merger Agreement (Golden Ocean Group LTD)
Contracts. (a) Schedule 3.11(a) is a correct and complete list (by reference to the applicable subsection hereof) of each of the following Contracts to which the Company is a party following completion of the Restructuring (the “Material Contracts”): (i) each continuing Contract for the purchase of goods or the supply of services that requires the Company, or is reasonably likely to result in the Company being obligated, to pay an annual amount of $50,000 or more in the aggregate after the Agreement Date (excluding Contracts with publishers), or that entitles the Company to receive an annual amount of $50,000 or more in the aggregate after the Agreement Date, excluding insertion orders entered into by the Company with advertisers or marketers in the ordinary course of business, (ii) all Contracts that restrict the Company or any of its Affiliates from competing with or engaging in any business activity anywhere in the world or soliciting for employment, hiring or employing any Person, (iii) all Contracts pursuant to which the Company has acquired or disposed of, or is obligated to acquire or dispose of, a business or an entity, or a material portion of the assets of a business or entity, whether by way of merger, consolidation, purchase or sale of stock, purchase or sale of assets, license or otherwise, and as to which the Company has continuing material obligations or material rights, (iv) all Contracts concerning joint venture or partnership agreements, or the sharing of profits, (v) all Contracts whereby the Company leases, subleases, licenses, or otherwise holds any rights to use or occupy any interest in real property (the “Real Property Leases”), (vi) all Contracts with respect to Indebtedness, (vii) all Contracts with any Governmental Authority, (viii) all Contracts listed on Schedule 3.10(b)(i), (ix) all Contracts listed on Schedule 3.10(b)(ii), (x) all Contracts that contain any “most-favored nation” pricing or similar pricing terms or provisions regarding minimum volumes, or rebates, excluding any Contracts with such provisions that are for the benefit of Company, (xi) any collective bargaining agreements, (xii) all Contracts with respect to the employment of any individual on a full-time, part-time, consulting, or other basis involving annual payments of more than $100,000 and that, in each case, is not immediately terminable by the Company without cost or Liability, (xiii) each Contract with any publisher that resulted in the payment by the Company to such publisher of an amount of $50,000 or more in the aggregate during the twelve month period ended December 31, 2013, and (xiv) all Contracts not made in the ordinary course of the Business consistent with past practice and that are material to the Business.
(b) Except as set forth in Part 3.9 of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(aSchedule 3.11(b), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all correct and complete copies of the Material Contracts are listed on Schedule 3.11(a), together with all modifications and amendments thereto, have previously been delivered or made available to Buyer. Except as set forth on Schedule 3.11(b), each of the Material Contracts is in full force and effect, is valid and binding enforceable in accordance with its terms, and is not subject to any claims, charges, set-offs or defenses in connection with the enforcement by the Company of any rights thereunder. Except as set forth on Schedule 3.11(b), the applicable Acquired Corporation Company is not in material default under, nor has any event occurred which with the giving of notice or the passage of time or both would constitute a material default by the Company under, or which would give rise to any right of notice, modification, acceleration, payment, cancellation or termination of or by another party under, or in any manner release any party thereto from any material obligation under, any Material Contract and, to the knowledge of the Company, each no other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with the giving of notice or without notice, lapse the passage of time or both would constitute a material defaultdefault by any other party, under the provisions or which would give rise to any right of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendmentnotice, modification, extension acceleration, payment, cancellation or renewal with respect thereto) termination of each or by the Company under, or in any manner release any party thereto from any obligation under, any such Material Contract. Except as set forth on Schedule 3.11(b), neither Seller nor the Company has been notified in writing by any counterparty to any Material Contract that such counterparty is terminating or intends to terminate such Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Lin Television Corp), Stock Purchase Agreement (LIN Media LLC)
Contracts. (a) Except as set forth in Part 3.9 Section 2.14 of the Company Disclosure ScheduleSchedule lists the following agreements (written or oral) currently in effect (either in whole or in part, as of the date of this Agreement, neither including agreements with ongoing post-termination “tails” and ongoing post-termination obligations) to which the Company nor or any Subsidiary of the Company is a party to or is bound by any Contractparty:
(i) that is any agreement (or group of related agreements) for the lease of real property (regardless of amount or term), or for the lease of personal property from or to third parties providing for lease payments in excess of fifty thousand dollars ($50,000) per annum or having a “material contract” remaining term longer than six (as such term is defined in Item 601(b)(106) of Regulation S-K of the Exchange Act)months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of fifty thousand dollars ($50,000), or (C) in which the Acquired Corporations (taken as Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which any agreement concerning the Acquired Corporations (taken as establishment or operation of a whole) made expenditures for the fiscal year ended September 27partnership, 2014, joint venture or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000limited liability company;
(iv) evidencing any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may reasonably be expected to create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than fifty thousand dollars ($50,000) or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any agreement for the disposition of any significant portion of the assets or restricting business of the Company or any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere Subsidiary (other than sales of products in the worldOrdinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by agreement under which the Company or any Subsidiary has, or may reasonably be expected to have, any liability to an employee or consultant for pay or benefits after the ending of the Company, in excess of $5,000,000business relationship with such employee or consultant;
(vii) that is an Inbound License any agreement involving any officer, director or Outbound License, in each case, that either (A) grants exclusive rights stockholder of the Company or a Subsidiary under which the Company or any Affiliate has or may reasonably be expected to have any liability or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000obligation;
(viii) (A) imposing on, any agreement under which the consequences of a default or granting termination would reasonably be expected to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely be material to the Company’s publishing business Company and do not relate to the Company’s book manufacturing businessSubsidiaries, or (D) requiring an Acquired Corporation to purchase all of its requirements of taken as a specified good or service from any Person; orwhole;
(ix) any collective bargaining agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other Contract with a labor organization party (excluding indemnities contained in agreements for the purchase, sale or works council representing license of products entered into in the Ordinary Course of Business);
(x) any agreement that purports on its face to bind any Affiliate of the Company or any Subsidiary (other than the Company or any Subsidiary) in any way, including, but not limited to, prohibiting such Affiliate from engaging in any business that they would otherwise have been permitted to engage in.
(xi) any agreement under which the Company or any Subsidiary is restricted or prohibited from selling, licensing or otherwise distributing any of its employees technology or products, or providing services to, customers or potential customers or any class of customers, or otherwise engaging in a material aspect of the Company’s business in any geographic area, during any period of time or with any Person, or any segment of the market or line of business;
(xii) any agreement which would entitle any third party to receive a license or any other similar Contractright to intellectual property of the Buyer or any of the Buyer’s Affiliates following the Closing; and
(xiii) any other agreement (or group of related agreements) either involving more than fifty thousand dollars ($50,000) or not entered into in the Ordinary Course of Business.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has delivered or made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement Buyer a complete and correct accurate copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.agreement listed in Section 2.12 or Section 2.14
Appears in 2 contracts
Sources: Merger Agreement (Skyworks Solutions, Inc.), Merger Agreement (Skyworks Solutions, Inc.)
Contracts. (a) Except as set forth in Part 3.9 Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company Disclosure Schedule, is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than 12 months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Acquired Corporations (taken as Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, each establishes a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under Exchange Act, thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Company to indemnify any other party theretothereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business; and
(xi) any agreement, other than as contemplated by this Agreement, relating to the sales of securities of the Company to which the Company is a party.
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.13 of the Disclosure Schedule: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, except valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as may be limited by bankruptcyin effect immediately prior to the Closing; and (iii) the Company is not nor, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the is any other parties thereto haveparty, violated in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any knowledge of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including Company, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 2 contracts
Sources: Merger Agreement (Cromwell Uranium Corp.), Merger Agreement (WaferGen Bio-Systems, Inc.)
Contracts. (aSection 2(k) Except as set forth in Part 3.9 of the Company Disclosure Schedule lists the following contracts, agreements, and other written arrangements (other than with advertisers for the sale of air time which are listed in Section 2(s) of the Disclosure Schedule, as of ) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, compensation agreement, employment agreement, commission agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Stations;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess written arrangement concerning a guaranty by the Seller of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to the obligations of any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Personparty; or
(ix) any collective bargaining agreement other written arrangement (or other Contract with group of related written arrangements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. The Seller has delivered to the Buyer a labor organization or works council representing any correct and complete copy of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(k) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed which constitutes an Assumed Contract: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and enforceable and in full force and effect on identical terms following the Closing (if the arrangement has not expired according to the knowledge of the Company, none of the other parties thereto have, violated its terms); (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually if reduced to written form, would be required to be listed in Section 2(k) of the Disclosure Schedule under the terms of this Section 2(k). Except for the Assumed Contracts, the Buyer shall not have any Liability or obligations for or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice respect of any of the foregoing. The Company has made available to Parent or Parent’s Representatives contracts set forth in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect theretoSection 2(k) of each Material Contractthe Disclosure Schedule or any other contracts or agreements of the Seller. No advertiser of the Stations has indicated within the past year that it will stop, or decrease the rate of, buying services from them.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. (a) Except (x) as set forth in Part 3.9 of the Company Disclosure Schedule, filed as of an exhibit to a Rolex Report prior to the date of this Agreement, (y) for the Rolex Benefit Plans, or (z) as set forth on Section 4.17(a) of the Rolex Disclosure Letter, neither the Company Rolex nor any Rolex Subsidiary of the Company is a party to or is bound by any Contract of the following type in effect as of the date of this Agreement (it being understood that and any Contract or group of related Contracts with the same party or group of Affiliated parties shall be treated as a single Contract in determining the dollar value of such Contract(s) in relation to any dollar thresholds below) (each, a “Rolex Material Contract:”):
(i) any Contract to which Rolex or any of its Subsidiaries is a party that is a “material contract” (as such term is defined in required to be filed by Rolex with the SEC pursuant to Item 601(b)(10) of Regulation S-K of promulgated under the Exchange Act), excluding any such Contract that has expired or been terminated or otherwise no longer in effect;
(ii) pursuant other than Constituent Documents of wholly owned Rolex Subsidiaries, any Contract that is a joint venture agreement, strategic partnership agreement, limited liability company operating agreement and partnership agreements or arrangements relating to the formation, creation, operation, management or control of any material partnership, strategic alliance or joint venture, to which Rolex or any Rolex Subsidiary is a party;
(iii) any Contract that (A) restricts in any material respect the Acquired Corporations ability of Rolex or any Rolex Subsidiary to compete in any line of its business with any Person or anywhere in the world or during any period of time or (B) obligates Rolex or any Rolex Subsidiary to grant any “most favored nations” pricing provision or similar rights, and/or “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that would be material to the business of Rolex and the Rolex Subsidiaries, taken as a whole;
(iv) received revenues any Contract, other than Contracts with customers, suppliers, and dealers entered into in the ordinary course of business, that has generated payments to or from Rolex and the Rolex Subsidiaries in excess of $10,000,000 for the fiscal year ended September 27, 2014, twelve-month period prior to the date hereof;
(v) any Contract under which Rolex or any Rolex Subsidiary is reasonably expected to receive revenues in a future annual period, or may be liable for any Indebtedness in excess of $10,000,000;
(iiivi) any Contract entered into in the five (5) year period prior to the date hereof that (A) relates to the acquisition (whether by merger, sale of equity interests, sale of assets, capital contribution or otherwise) by Rolex or any Rolex Subsidiary of any corporation, partnership or other business, or organization or division thereof, pursuant to which the Acquired Corporations (taken as Rolex or a whole) made expenditures for the fiscal year ended September 27Rolex Subsidiary has any continuing material indemnification, 2014guarantee, or is reasonably expected other material contingent, deferred or fixed payment obligations or rights (including “earnouts” and other contingent or deferred consideration), (B) relates to make expenditures in the disposition (whether by merger, sale of equity interests, sale of assets, capital contribution or otherwise) by Rolex or a future annual periodRolex Subsidiary of any corporation, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting partnership or restricting any Acquired Corporation from competing in any business or geographic areaother business, or from soliciting customers organization or employeesdivision thereof, pursuant to which Rolex or such Rolex Subsidiary has any continuing material indemnification, guarantee, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
other material contingent, deferred or fixed payment obligations or rights (viincluding “earnouts” and other contingent or deferred consideration), or (C) relating contains a put, call, right of first refusal or similar right pursuant to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company which Rolex or any Rolex Subsidiary could be required to acquire or dispose of, as applicable, any of the Company, in excess of $5,000,000foregoing;
(vii) any Contracts that are conciliation, settlement or similar agreements pursuant to which Rolex or any Rolex Subsidiary is an Inbound License or Outbound License, in each case, that either will be required to (A) grants exclusive rights to make payments in excess of $2,000,000 individually or from an Acquired Corporation $10,000,000 in aggregate, or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000satisfy any material non-monetary obligation;
(viii) any Contracts material to the operation of the business of Rolex and the Rolex Subsidiaries pursuant to which (A) imposing onany Person has licensed any Intellectual Property to Rolex or any Rolex Subsidiary or granted Rolex or any Rolex Subsidiary any covenant not to sue, excluding licenses with respect to commercially available software or technology, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” Rolex or similar status any Rolex Subsidiary has granted any Person a license to use any Person, (C) granting any type of exclusive rights Rolex Owned Intellectual Property or a covenant not to any Person, sue with respect thereto other than sales representation, distribution, licensing and similar contracts entered into licenses granted in the ordinary course course, including licenses granted in connection with the sale of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, any products or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orservices;
(ix) any collective bargaining Contracts that are with any Affiliate of Rolex or any Rolex Subsidiary (other than any contract, agreement or other instrument between Rolex or any Rolex Subsidiary and Rolex or another Rolex Subsidiary); or
(x) any Contract with a labor organization or works council representing to enter into any of its employees or any other similar Contractthe foregoing.
(b) Each contract, arrangement, commitment Except as has not resulted in or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse EffectEffect on Rolex, (a) subject to the Bankruptcy and Equity Exception, each Rolex Material Contract is a valid and binding agreement of Rolex or a Rolex Subsidiary, as the case may be, and, to the knowledge of Rolex, the other parties thereto, and no Acquired Corporation has received written notice is in full force and effect; (b) none of Rolex, any Rolex Subsidiary or, to the knowledge of Rolex, any other party thereto, is in default or breach in any respect under the terms of any such Rolex Material Contract; (c) since January 1, 2024, neither Rolex nor any Rolex Subsidiary, as the case may be, has waived any right or relinquished any benefit under any such Rolex Material Contract; and (d) no event has occurred, which, after the giving of notice, with lapse of time, or otherwise, would constitute a default by Rolex or any Rolex Subsidiary or, to the foregoingknowledge of Rolex, any other party under such Rolex Material Contract. The Company has True, correct and complete copies of each Rolex Material Contract (including all modifications and amendments thereto and waivers thereunder) have been made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractTag.
Appears in 2 contracts
Sources: Merger Agreement (REV Group, Inc.), Merger Agreement (Terex Corp)
Contracts. (a) Except as set forth in Part 3.9 of the Company Disclosure ScheduleSchedule 3.6(a) sets forth, as of the date of this Agreement, neither a list of each Contract that is (x) included in the Company nor any Subsidiary Assigned Contracts or (y) of the Company is a party type set forth below to the extent primarily used in or is bound by any Contractprimarily related to the Acquired Business:
(i) a Contract (or group of related Contracts with respect to a single transaction or series of related transactions) that is a “material contract” involves payments, performance or services or delivery of goods or materials to or by any Seller of any amount or value in excess of, or reasonably expected to exceed, $100,000 in any twelve (as such term is defined in Item 601(b)(1012) of Regulation S-K of the Exchange Act)month period;
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues Contract for the fiscal year ended September 27furnishing or receipt of services, 2014, or is reasonably expected to receive revenues in the performance of which will extend over a future annual period, in excess period of $10,000,000more than twelve (12) months;
(iii) pursuant to which a Contract that is a joint venture agreement or similar agreement involving the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess sharing of $2,500,000profits and losses;
(iv) evidencing a capital expenditure Contract that contains any (i) “most favored nation” pricing in excess favor of $2,500,000any customer of the Acquired Business in a manner material to the Acquired Business, (ii) a provision expressly requiring the purchase of goods or services exclusively from another Person or (iii) express restriction on the ability to compete in any line of business or with any Person or to provide services generally or in any market segment or any geographic area ;
(v) containing a covenant prohibiting Contract granting an option to acquire, sell, lease or restricting license any Acquired Corporation from competing Asset or granting any right of first offer, right of first refusal or right of first negotiation in any business or geographic area, or from soliciting customers or employees, or otherwise restricting respect of any Acquired Corporation from carrying on any business anywhere in the worldAsset;
(vi) relating to a Contract with or evidencing Indebtednessfor the benefit of any present officer, including any guarantee director, employee or Affiliate of Indebtedness by the Company or any Subsidiary of the Companya Seller (each, in excess of $5,000,000a “Related Party” and each such Contract, a “Related Party Contract”);
(vii) a power of attorney that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000currently effective and outstanding;
(viii) (A) imposing onany settlement, conciliation or similar agreement with any Governmental Body, or granting to, an Acquired Corporation any future minimum take-or-that will require a Seller to pay requirements consideration after the date hereof in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orand
(ix) any collective bargaining agreement endorsement or other influencer Contract with a labor organization or works council representing related to any of its employees the Transferred Trademarks or any other similar Contractthe E-Commerce Platform.
(b) Each contractSubject to requisite Bankruptcy Court approvals, arrangement, commitment or understanding and assumption by the applicable Seller of the type required to be described applicable Contract in Section 3.9(a)accordance with applicable Law (including satisfaction of any applicable Cure Costs) and except as a result of the commencement of the Bankruptcy Case, whether or not set forth each of the Assigned Contracts is in Part 3.9(a) full force and effect and is a valid, binding and enforceable obligation of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation its Subsidiaries and, to the knowledge of the Company, each of the other party parties thereto, and in full force and effect, except as may be limited by bankruptcythe Enforceability Exceptions. Except as a result of the commencement of the Bankruptcy Case, insolvencyneither the Company nor any of its Subsidiaries, moratorium and other similar applicable law affecting creditors’ rights generally and as applicable, is in material default, or is alleged in writing by general principles of equity. No Acquired Corporation hasthe counterparty thereto to have materially breached or to be in material default, and under any Assigned Contract, and, to the knowledge of the Company, none of the other parties thereto have, violated party to each Assigned Contract is not in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoingdefault thereunder. The Company has made available to Parent or Parent’s Representatives in the Data Room prior Purchaser complete and correct copies of all Assigned Contracts, each as amended to the date hereof. None of this Agreement the Assigned Contracts has been canceled or otherwise terminated, and neither the Company nor its Subsidiaries has received any written notice from any Person regarding any such cancellation or termination.
(c) Except for normal employment relationships between an employer and employee, no Related Party directly or indirectly is a complete and correct copy (including party to any material amendment, modification, extension or renewal with respect thereto) of each Material Assigned Contract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Pier 1 Imports Inc/De), Asset Purchase Agreement
Contracts. (aSection 4(p) Except as set forth in Part 3.9 of the Company Disclosure Schedule, as of Schedule lists the date of this Agreement, neither the Company nor following contracts and other agreements to which any Subsidiary of the Company Target is a party to or is bound by any Contractparty:
(i) that is a “material contract” any agreement (as such term is defined or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$50,000 per annum;
(ii) pursuant to which the Acquired Corporations any agreement (taken as a wholeor group of related agreements) received revenues for the fiscal year ended September 27purchase or sale of raw materials, 2014commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than 1 year or involve consideration in excess of $50,000;
(iii) any agreement concerning a partnership or joint venture that is reasonably expected to receive revenues currently in a future annual periodforce;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000,000;
(iii) pursuant to 50,000 or under which the Acquired Corporations (taken as it has imposed a whole) made expenditures for the fiscal year ended September 27Lien on any of its assets, 2014, tangible or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000intangible;
(v) containing a covenant prohibiting any material agreement that restricts the ability of the Targets to freely engage or restricting any Acquired Corporation from competing compete in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any line of business anywhere in the world;
(vi) relating to any material agreement between any Target, on the one hand, and any Seller or evidencing Indebtednessan Affiliate of Seller (other than Targets), including on the other hand, other than any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000Employee Benefit Plan;
(vii) that is an Inbound License any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or Outbound Licenseother material plan or arrangement for the benefit of its current or former directors, officers, and employees with outstanding obligations in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000place;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess collective bargaining agreement with a labor organization relating to employees of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orTargets;
(ix) any collective bargaining agreement for the employment of any individual on a full-time or part-time basis or, consulting of an individual, or other Contract with a labor organization basis providing annual compensation in excess of $150,000 or works council representing providing material severance benefits;
(x) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees (other than the advancement of expenses to employees and other service providers in the Ordinary Course of Business);
(xi) any agreement under which the consequences of a default or termination could have a Material Adverse Effect;
(xii) any agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) any settlement, conciliation or similar agreement with any Governmental Authority or which will involve payment after the execution date of this Agreement of consideration in excess of $50,000 ;
(xiv) any agreement under which any Target has advanced or loaned any other similar Contract.Person amounts in the aggregate exceeding $50,000 (other than the advancement of expenses to employees and other service providers in the Ordinary Course of Business); or
(bxv) Each contract, arrangement, commitment any other agreement (or understanding group of related agreements) the type required performance of which involves consideration in excess of $50,000. Sellers has delivered to be described Buyer a correct and complete copy of each written agreement (as amended to date) listed in Section 3.9(a), whether or not set forth in Part 3.9(a4(p) of the Company Disclosure Schedule and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 4(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effecteffect in all material respects; (B) no Target is in material breach or default, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge Knowledge of Sellers, no other party is in material breach or default, and, to the CompanyKnowledge of Sellers, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event has occurred that with notice or condition exists, which with or without notice, lapse of time or both would constitute a material breach or default, or permit termination, modification, or acceleration, under the provisions agreement; and (C) to the Knowledge of Sellers, no party has repudiated any Material Contractmaterial provision of the agreement, except in each case for those violations of clauses (B) and defaults which, individually or in the aggregate, (C) as would not reasonably be expected to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Securities Purchase and Exchange Agreement (TerrAscend Corp.), Securities Purchase and Exchange Agreement
Contracts. (aSection 2(j) Except as set forth in Part 3.9 of the Company Disclosure Schedule lists the following contracts, agreements, and other written arrangements (other than with advertisers for the sale of air time which are listed in Section 2(r) of the Disclosure Schedule, as of ) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, compensation agreement, employment agreement, commission agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Stations;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess written arrangement concerning a guaranty by the Seller of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to the obligations of any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Personparty; or
(ix) any collective bargaining agreement other written arrangement (or other Contract with group of related written arrangements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. The Seller has delivered to the Buyer a labor organization or works council representing any correct and complete copy of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(j) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed which constitutes an Assumed Contract: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and enforceable and in full force and effect on identical terms following the Closing (if the arrangement has not expired according to the knowledge of the Company, none of the other parties thereto have, violated its terms); (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually if reduced to written form, would be required to be listed in Section 2(j) of the Disclosure Schedule under the terms of this Section 2(j). Except for the Assumed Contracts, the Buyer shall not have any Liability or obligations for or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice respect of any of the foregoing. The Company has made available to Parent or Parent’s Representatives contracts set forth in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect theretoSection 2(j) of each Material Contractthe Disclosure Schedule or any other contracts or agreements of the Seller. No advertiser of the Stations has indicated within the past year that it will stop, or decrease the rate of, buying services from them.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 3.16 of the Company Parent Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Parent or any of its Subsidiaries is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” any agreement (as such term is defined in Item 601(b)(10or group of related agreements) for the lease of Regulation S-K of the Exchange Act)personal property from or to third parties;
(ii) pursuant to which the Acquired Corporations any agreement (taken as a wholeor group of related agreements) received revenues for the fiscal year ended September 27, 2014, purchase or is reasonably expected to receive revenues in a future annual period, in excess sale of $10,000,000products or for the furnishing or receipt of services;
(iii) pursuant to which the Acquired Corporations (taken as any agreement establishing a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing agreement that purports to limit in any business or geographic areamaterial respect the right of the Company to engage in any line of business, or from soliciting customers to compete with any person or employees, or otherwise restricting operate in any Acquired Corporation from carrying on any business anywhere in the worldgeographical location;
(vi) relating to any employment or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000consulting agreement;
(vii) that is an Inbound License any agreement involving any current or Outbound Licenseformer officer, in each case, that either (A) grants exclusive rights to director or from an Acquired Corporation stockholder of the Parent or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000any Affiliate thereof;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in agreement under which the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements consequences of a specified good default or service from any Person; ortermination would reasonably be expected to have a Parent Material Adverse Effect;
(ix) any collective bargaining agreement which contains any provisions requiring the Parent or other Contract with a labor organization or works council representing any of its employees Subsidiaries to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any other agreement (or group of related agreements) either involving more than $5,000 or not entered into in the Ordinary Course of Business; and
(xi) any agreement, other than as contemplated by this Agreement and the Split-Off, relating to the sales of securities of the Parent or any other similar Contractof its Subsidiaries to which the Parent or such Subsidiary is a party.
(b) Each contract, arrangement, commitment The Parent has delivered or understanding made available to the Company a complete and accurate copy of each agreement listed in Section 3.16 of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Parent Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubt, early termination), all of the Material Contracts are valid binding and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, enforceable and in full force and effect, except as such enforceability may be limited by under applicable bankruptcy, insolvencyinsolvency and similar laws, moratorium and other similar applicable law rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity whether applied in a court of law or a court of equity; (ii) the agreement will not, as a result of the execution and delivery by the Parent of this Agreement or the consummation by the Parent of the transactions contemplated hereby, cease to be a legal, valid, binding and enforceable obligation of the Parent, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity. No Acquired Corporation has, whether applied in a court of law or a court of equity, or to be in full force and effect in accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) neither the Parent nor any of its Subsidiaries nor, to the knowledge of the CompanyParent, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Parent, is threatened, which, after the giving of notice, with lapse of time or both otherwise, would constitute a material default, under breach or default by the provisions of any Material Contract, except in each case for those violations and defaults which, individually Parent or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior its Subsidiaries or, to the date knowledge of this Agreement a complete and correct copy (including the Parent, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 2 contracts
Sources: Merger Agreement (Miramar Labs, Inc.), Merger Agreement (Miramar Labs, Inc.)
Contracts. (a) Except as set forth in Part 3.9 for this Agreement, the Asset Exchange Agreement and the Omnibus Termination Agreement, the other agreements executed contemporaneously herewith or therewith and Contracts listed on Section 3.15(a) of the Company Disclosure ScheduleLetter, and except as filed with the SEC, as of the date of this Agreementhereof, neither the Company nor any Subsidiary of the Company Subsidiaries is a party to or is bound by any ContractContract that:
(i) that is filed or required to be filed by the Company as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of under the Exchange Securities Act);
(ii) pursuant relates to which any partnership, joint venture, co-investment, limited liability, strategic alliance or similar agreement involving the Acquired Corporations Company or any Company Subsidiary (taken as a whole) received revenues for other than any such agreement solely between or among the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000Company and its Subsidiaries);
(iii) pursuant contains any non-compete, exclusivity, “most favored nations” or other similar provision that limits or purports to limit, in any material respect, either the type of business in which the Acquired Corporations Company or any Company Subsidiary (taken as a wholeor, after giving effect to the Mergers, Parent or its Subsidiaries) made expenditures for may engage, the fiscal year ended September 27terms or conditions the Company or any Company Subsidiary (or, 2014after giving effect to the Mergers, Parent or its Subsidiaries) can offer to any other Person, or is reasonably expected the geographic area in which the Company or any Company Subsidiary (or, after giving effect to make expenditures in a future annual periodthe Mergers, in excess of $2,500,000Parent or its Subsidiaries) may so engage;
(iv) evidencing involves any pending or future acquisition or disposition of (A) real property or real property interest or (B) except as in the ordinary course of business consistent with past practice, any material personal property, in each case, with a capital expenditure fair market value in excess of $2,500,0001,000,000;
(v) containing a covenant prohibiting involves any pending or restricting contemplated merger, consolidation or similar business combination transaction with the Company or any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in of the worldCompany Subsidiaries;
(vi) relating by its terms obligates the Company or any Company Subsidiary to make expenditures (other than principal and/or interest payments or evidencing Indebtednessthe deposit of other reserves with respect to debt obligations) or entitled to payments (A) in excess of $1,000,000, including in any guarantee 12-month period or (B) in excess of Indebtedness $2,000,000 in the aggregate over the term of such Contract;
(vii) relates to the settlement or proposed settlement of any dispute or Action in which the amount to be paid in settlement involves (A) the issuance of any securities by the Company or any Company Subsidiary or (B) the payment of any cash or other consideration having a value, in each case, of more than $1,000,000;
(viii) contains a standstill or similar Contract pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities of any other Person;
(ix) is of the Companytype that is or would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(x) involves the lease by the Company or any Company Subsidiary (as lessors) of any Retained Assets;
(xi) was entered into with any Company Subsidiary or any other Person in which the Company holds, directly or indirectly, any ownership interest which relates to the rights of the Company with respect to voting, rights of first offer, rights of first refusal or other similar rights regarding equity interests in such Person;
(xii) evidences a capitalized lease obligation in excess of $5,000,000;
(vii) , or that is an Inbound License indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage, suretyship, “keep well” or Outbound License, in each case, that either (A) grants exclusive rights to other agreement providing for or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation guaranteeing indebtedness of any Person in excess of $250,000;
5,000,000 (viii) (A) imposing onother than surety or performance bonds, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess letters of $100,000, (B) granting “most favored nation,” “most favored customer” credit or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts agreements entered into in the ordinary course of business and that relate solely consistent with past practice in each case to the extent not drawn upon), except for any Contract solely among or between the Company and any Company Subsidiary;
(xiii) contains restrictions on the ability of the Company’s publishing business and do not relate , the Partnership or any Company Subsidiary to pay dividends or other distributions (other than pursuant to the Company’s book manufacturing businessCompany Charter, Company Bylaws, the Partnership Agreement or any Existing Loan Document);
(xiv) purports to bind Affiliates of the Company (other than any Company Subsidiary) in any material respect, excluding any Contracts where such Affiliates of the Company are also parties to such Contracts;
(xv) contains a put, call or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $1,000,000, or (D) requiring constitutes an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement interest rate cap, interest rate collar, interest rate swap or other Contract with relating to a labor organization or works council representing any of its employees or any other similar Contract.
(b) hedging transaction. Each contract, arrangement, commitment or understanding of the type required to be such Contract described in Section 3.9(a), whether or not set forth in Part 3.9(aclauses (i) of the Company Disclosure Schedule, through (xv) above is referred to herein as a “Material Contract.” Except for ”
(b) Each Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are Contract is valid and binding on the applicable Acquired Corporation Company or the Company Subsidiary party thereto and, to the knowledge of the Company, each any other party thereto, and is in full force and effect, except for such failures to be valid and binding or to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as may would not reasonably be limited expected to have a Material Adverse Effect, the Company, or the Company Subsidiary party thereto, has performed all obligations required to be performed under such Material Contracts prior to the date of this Agreement. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no default under any Material Contract by bankruptcythe Company or any Company Subsidiary party thereto or, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the by any other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any actparty thereto, and no event or condition exists, which has occurred that with or without notice, the lapse of time or the giving of notice or both would constitute a material defaultdefault thereunder by the Company or any Company Subsidiary party thereto or, to the knowledge of the Company, by any other party thereto. Neither the Company nor any Company Subsidiary has given or received notice of any violation or default under the provisions of any Material Contract, except in each case for those violations and or defaults whichthat would not reasonably be expected to have, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. .
(c) The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement Agreement, accurate and complete copies of all written Material Contracts, including all amendments thereto as in effect as of the date of this Agreement.
(d) Neither the Company nor any of the Company Subsidiaries is a complete and correct copy (including party to or bound by any material amendment, modification, extension or renewal with respect thereto) of each Material ContractGovernment Contracts.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (InfraREIT, Inc.)
Contracts. (a) Except as set forth Section 3.14(a) of the Disclosure Schedule lists the following agreements (other than those agreements which have been terminated with no ongoing obligations other than confidentiality or publicity) in Part 3.9 favor of the Company Disclosure Schedule, as of the date of this Agreement, neither (each a “Contract”) to which the Company nor or any Subsidiary of the Company is a party to or is bound by any Contractparty:
(i) that is a “material contract” any agreement (as such term is defined in Item 601(b)(10or group of related agreements) for the lease of Regulation S-K personal property from or to third parties which involves more than the sum of the Exchange Act)$100,000;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $100,000, or (C) in which the Acquired Corporations (taken as Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any services, products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant any agreement providing for any royalty, milestone or similar payments by the Company with respect to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, development or is reasonably expected to make expenditures in a future annual periodsale of any product or use of Intellectual Property, in excess each case providing for payments of more than $2,500,00050,000;
(iv) evidencing any agreement concerning the establishment or operation of a capital expenditure in excess of $2,500,000partnership, joint venture or limited liability company;
(v) containing any agreement (or group of related agreements) under which the Company or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying Security Interest on any business anywhere in the worldof its assets, tangible or intangible;
(vi) relating any agreement for the disposition of any significant portion of the assets or business of the Company or any Subsidiary (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other Person (other than purchases of inventory or components in the Ordinary Course of Business);
(vii) any agreement concerning confidentiality, noncompetition or non-solicitation (excluding any confidentiality agreements with consultants, service providers, suppliers or employees of the Company or any Subsidiary containing terms and conditions set forth in the Company’s or the applicable Subsidiary’s standard form of agreement, copies of which have previously been, or in the case of those Contracts indicated in Section 3.14(a)(vii) of the Disclosure Schedule, will prior to the Closing Date be, delivered or evidencing Indebtednessmade available to the Buyer);
(viii) any employment agreement, including any guarantee consulting agreement, severance agreement (or agreement that includes provisions for the payment of Indebtedness severance) or retention agreement, other than offer letters with employees (the form of which has been made available to the Buyer) providing for “at will” employment in the form used by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course Ordinary Course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orBusiness;
(ix) any collective bargaining settlement agreement or settlement-related agreement (including any agreement in connection with which any employment-related claim is settled);
(x) any agreement involving any current or former officer, director or stockholder of the Company or any Affiliate thereof, other Contract than as mentioned under (viii) above;
(xi) any agreement not otherwise listed in Section 3.14(a) of the Disclosure Schedule under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(xii) any agency, distributor, sales representative, franchise or similar agreements to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound;
(xiii) any agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the Ordinary Course of Business);
(xiv) any agreements relating to grants, funding or other forms of assistance, including loans with a labor organization interest at below market rates, received by the Company or works council representing any of its employees Subsidiaries from any Governmental Entity;
(xv) any agreement that would reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company or any of the Subsidiaries or the Buyer or any of its subsidiaries as currently conducted and as currently proposed to be conducted;
(xvi) the agreements listed in Sections 3.13(h) and 3.13(i) of the Disclosure Schedule; and
(xvii) any other similar Contractagreement (or group of related agreements) either involving more than $100,000 or not entered into in the Ordinary Course of Business.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the The Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, has made available to the knowledge Buyer a complete and accurate copy of each Contract (as amended to date). With respect to each Contract: (i) the CompanyContract is legal, each other party theretovalid, binding and enforceable, subject to Applicable Bankruptcy Laws, and in full force and effecteffect against the Company or the Subsidiary that is the party thereto, except as may applicable, and, to the Warrantors’ Knowledge, against each other party thereto; (ii) the Contract will continue to be limited by bankruptcylegal, insolvencyvalid, moratorium binding and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasenforceable, subject to Applicable Bankruptcy Laws, and in full force and effect against the Company or the Subsidiary that is the party thereto, as applicable, and, to the knowledge Warrantors’ Knowledge, against each other party thereto immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) none of the Company, none any Subsidiary or, to the Knowledge of the Warrantors, any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch Contract, and no event or condition existshas occurred, which with or without is pending or, to the Knowledge of the Warrantors, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company, any Subsidiary or, to the Knowledge of the Warrantors, any other party under such Contract.
(c) Neither the Company nor any Subsidiary is a party to any oral contract, agreement or other arrangement which, if reduced to written form, would be required to be listed in Section 3.14(a) of the Disclosure Schedule under the provisions terms of Section 3.14(a). Neither the Company nor any Material Contract, except in each case for those violations and defaults which, individually Subsidiary is a party to any written or in the aggregate, would not reasonably be oral arrangement (i) to perform services or sell products which is expected to be performed at, or to result in in, a Company Material Adverse Effectloss, and no Acquired Corporation (ii) that is of an onerous or unusual nature, or (iii) for which the customer has received written notice of any of already been billed or paid that have not been fully accounted for on the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractMost Recent Balance Sheet.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Medicines Co /De)
Contracts. (a) Except as set forth in Part 3.9 of 14.1 For the Company Disclosure Schedule, as of the date purposes of this AgreementSchedule 3, neither the Company nor any Subsidiary of following agreements, to the extent that a Group Company is a party thereto, are “Material Contracts”:
(a) agreements which restrict, or would restrict following Completion, the freedom of the Purchaser Group (including the Group) to carry on its business in any part of the world in such manner as it thinks fit, and which are incapable of termination without material compensation by a Group Company at its discretion on fewer than six months’ unilateral notice;
(b) agreements which are a joint venture, consortium, partnership, other unincorporated association or profit (or loss) sharing agreement;
(c) agreements which set out the principal terms of the management or governance of each of the Funds to which any Group Company is bound party;
(d) agreements under which any Group Company has sold or disposed of any company or business where it remains subject to any material liability (whether contingent or otherwise);
(e) agreements which involve or are likely to involve expenditure by any Group Company, or payments to any Group Company, totalling in excess of US$ 2 million per annum;
(f) agreements which are not on arm’s lengths terms which involve or are likely to involve expenditure by any Group Company, or payments to any Group Company, totalling in excess of US$ 1 million per annum;
(g) agreements which include a guarantee, indemnity or other agreement given by any Group Company securing an obligation (in an amount in excess of US$ 1 million) of a person other than a Group Company, except in the ordinary course of business; or
(h) agreements under which, by virtue of the Transaction, (i) any other party is likely to be relieved of any material obligation or become entitled to exercise any material right (including any termination or pre-emption right or other option); or (ii) any Group Company is likely to be in default or lose any material benefit, right or licence which it currently enjoys; or (iii) a material liability or obligation of a Group Company is likely to be created or increased.
14.2 True and accurate copies of all Material Contracts as at the date hereof have been disclosed in the Data Room.
14.3 All of the Material Contracts are currently in force, and so far as the Seller is aware binding and enforceable.
14.4 No Group Company nor, so far as the Seller is aware, any third party is in material default under any Material Contract.
14.5 There are no circumstances which, with notice and/or lapse of time, even taking into account the completion of the Transaction, would be a material breach of any Material Contract by a Group Company or a breach that would give to others any rights of termination or rescission of, material amendment of, or acceleration of material obligations under any Material Contract.
14.6 No notice of termination or of intention to terminate has been received in respect of any Material Contract.
14.7 No Group Company has received, or given, any written notice relating to a Material Contract:
(ia) asserting that there is a “any outstanding material contract” breach by any Group Company of its obligations under that Material Contract; (as b) alleging that such term Material Contract is defined in Item 601(b)(10not valid and subsisting; or (c) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014seeking, or is reasonably expected notifying of its intention, to receive revenues in effect any termination or amendment of a future annual period, in excess of $10,000,000;Material Contract.
(iii) pursuant to which 14.8 All the Acquired Corporations (taken as related party transactions between a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Group Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound Licenseon one hand, in each caseand the Seller Group, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing onon the other hand, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts are entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contracton arms’ length terms.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Contracts. (a) Except as set forth in Part 3.9 Section 5.15(a) of the Company Parent Disclosure Schedule, as Letter lists the following Contracts to which Parent or any of the date of this Agreement, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractparty:
(i) that is a “material each"material contract” " (as such term is defined in Item 601(b)(1010.0 and in Instructions As To Exhibits of Form 20-F) to which Parent or any of Regulation S-K of the Exchange Act)its Subsidiaries is a party to or bound;
(ii) pursuant each Contract not contemplated by this Agreement that limits the ability of Parent or any of its Subsidiaries or Affiliates to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, engage in or is reasonably expected to receive revenues compete with any line of business in a future annual period, any location or with any Person in excess of $10,000,000any material manner;
(iii) pursuant each Contract that creates a partnership, joint venture or any strategic alliance with respect to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, Company or is reasonably expected to make expenditures in a future annual period, in excess any of $2,500,000its Subsidiaries;
(iv) evidencing a capital expenditure in excess each employment, consulting, services or similar Contract with any employee or independent contractor of Parent or any of its Subsidiaries involving more than $2,500,000250,000 of annual compensation;
(v) containing a covenant prohibiting each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or restricting any Acquired Corporation from competing other evidence of Indebtedness or Contract providing for Indebtedness individually in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldexcess of $1,000,000;
(vi) relating each Contract entered into since January 1, 2016 that relates to the acquisition or evidencing Indebtednessdisposition, directly or indirectly, of any business (whether by merger, sale of stock, sale of assets or otherwise) or any material assets, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
vessel (vii) that is an Inbound License or Outbound License, in each case, that either other than (A) grants exclusive rights to or from an Acquired Corporation this Agreement or (B) requires aggregate payments to acquisitions or from an Acquired Corporation in excess dispositions of $250,000;
supplies, inventory, merchandise or products (viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into vessels) in the ordinary course of business and or that relate solely to are obsolete, worn out, surplus or no longer used or useful in the Company’s publishing conduct of business and do not relate to the Company’s book manufacturing businessof Parent or its Subsidiaries), including also any such Contract whenever entered into that includes provisions that remain in effect in respect of"earn-outs" or deferred or contingent consideration;
(vii) each ship-sales, memorandum of agreement, bareboat charter, or (D) requiring an Acquired Corporation to purchase all other vessel acquisition Contract entered into since January 1, 2016 for Newbuildings and secondhand vessels contracted for by Parent or any of its requirements Subsidiaries (other than Company Owned Vessels) and other Contracts entered into since January 1, 2016 with respect to Newbuildings of a specified good Parent or service from any Person; orof its Subsidiaries and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) each pool agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Parent Vessel;
(ix) any Contract with a Third Party for the charter of any Parent Vessel;
(x) each collective bargaining agreement or other Contract with a labor organization union to which Parent or works council representing any of its employees Subsidiaries is a party or otherwise bound;
(xi) each Contract that provides for indemnification by Parent or any of its Subsidiaries to any Person other than a Contract entered into in the ordinary course of business;
(xii) each Contract pursuant to which Parent or any of its Subsidiaries spent or received, in the aggregate, more than $500,000 during the twelve (12) months prior to the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $500,000 during the twelve (12) months immediately after the date hereof;
(xiii) each Contract to which Parent or any of its Subsidiaries is a party or otherwise bound that contains a so-called"most favored nations" provision or similar Contractprovisions requiring Parent or its Affiliates to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xiv) each Contract involving a standstill or similar obligation of Parent or any of its Subsidiaries.
(b) Each contract, arrangement, commitment or understanding of the type required Parent has heretofore made available to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all true and complete copies of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge as in effect as of the Companydate hereof. Except as set forth on Section 5.15(b) of the Parent Disclosure Letter or as would not reasonably be expected to be material to Parent and its Subsidiaries, taken as a whole, (i) each other party theretoof the Material Contracts is valid, binding, enforceable and in full force and effecteffect with respect to Parent and its Subsidiaries, and to the Knowledge of Parent, the other parties thereto, except as to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium the Equitable Exceptions and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasexcept for any Material Contracts that have expired or been terminated after the date hereof in accordance with its terms, and (ii) neither Parent nor any of its Subsidiaries, nor to the knowledge Knowledge of the CompanyParent any other party to a Material Contract, none of the other parties thereto have, has violated in any material respect any provision of, or committed taken or failed to perform take any actact which, and no event or condition exists, which with or without notice, lapse of time time, or both both, would constitute a material defaultbreach or default under, under the provisions or give rise to any right of any cancellation or termination of or consent under, such Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation neither Parent nor any of its Subsidiaries has received written notice of that it has breached, violated or defaulted under any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Euronav NV), Agreement and Plan of Merger (Euronav NV)
Contracts. (aSection 2(l) Except as set forth in Part 3.9 of the Company Disclosure ScheduleSchedule lists the following contracts, as agreements, and other written arrangements (other than with advertisers for the sale of air time) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, employment agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;the Stations; or
(viii) any other written arrangement (Aor group of related written arrangements) imposing on, either involving more than $5,000 or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts not entered into in the ordinary course Ordinary Course of business and that relate solely Business. The Seller has delivered to the Company’s publishing business Buyer a correct and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all complete copy of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(l) of the Company Disclosure ScheduleSchedule (as amended to date). The Buyer acknowledges receipt of copies of such arrangements from the Seller. With respect to each written arrangement so listed: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) through the stated termination date stated therein, except as may the written arrangement will continue to be limited by bankruptcylegal, insolvencyvalid, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and to enforceable and in full force and effect on identical terms following the knowledge of the Company, none of the other parties thereto have, violated Closing; (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually or in the aggregateif reduced to written form, would not reasonably be expected required to result be listed in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any Section 2(l) of the foregoing. The Company has made available to Parent or Parent’s Representatives in Disclosure Schedule under the Data Room prior to the date terms of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractSection 2(l).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. (a) Except for this Agreement, neither the Company nor any Company Subsidiary is a party to any Contract required to be filed by the Company as set forth in Part 3.9 a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (each, a “Filed Company Contract”) that has not been so filed.
(b) Other than Filed Company Contracts, Section 3.11(b) of the Company Disclosure ScheduleLetter sets forth, as of the date of this Agreement, neither a true and complete list, and the Company nor any Subsidiary has made available to Parent true and complete copies, of the following Contracts (and Filed Company Contracts without any redactions) to which Company or any Company Subsidiary is a party to or is bound by that bind assets of Company or any ContractCompany Subsidiary:
(i) each Contract, including any manufacturing, supply or distribution agreement, that requires by its terms or is a “material contract” reasonably likely to require the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an amount (as such term is defined 1) in Item 601(b)(10excess of $3,000,000 in the fiscal year ending December 31, 2024 or (2) in excess of Regulation S-K of $3,000,000 in the Exchange Act)fiscal year ending December 31, 2025 or any fiscal year thereafter;
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by each Contract that obligates the Company or any Subsidiary of the Company, Company to make any capital investment or capital expenditure in excess of $5,000,000500,000;
(iii) each Contract to which the Company or any of the Company Subsidiaries is a party that:
(A) materially restricts the ability of the Company or the Company Subsidiaries to compete in any business or with any Person in any geographical area or would, to the Knowledge of the Company, restrict in any material respect the ability of Parent or any of its Subsidiaries to compete in any business or with any Person in any geographical area after the Effective Time,
(B) requires the Company or any Company Subsidiary to conduct any business on a “most favored nations” basis with any third party,
(C) any “take or pay,” minimum purchase or minimum volume commitment provisions,
(D) provides for “exclusivity” or any similar requirement in favor of any third party, or
(E) contains any other provisions materially restricting or purporting to materially restrict the ability of the Company or any of its Subsidiaries to sell, market, distribute, promote, manufacture, develop, commercialize, or test or research any product or product candidate, directly or indirectly through third parties, or that would so limit or purport to limit Parent or any of its Affiliates after the Effective Time;
(iv) each Contract evidencing Indebtedness of the Company or any of the Company Subsidiaries, other than any such agreement between or among the Company and the wholly owned Company Subsidiaries and other than accounts payable in the ordinary course of business;
(v) any Contract involving the settlement or compromise of any Legal Proceeding or threatened Legal Proceeding (or series of related Legal Proceedings) which (A) involves either payments by the Company or any of its Subsidiaries after the date hereof in excess of $500,000, or (B) imposes any materially burdensome monitoring or reporting obligations to any other Person outside the ordinary course of business or any other material restrictions or liabilities on the Company or any Company Subsidiary (or, following the Closing, on Parent or any Parent Subsidiary);
(vi) each Company Lease;
(vii) that each partnership, joint venture or similar Contract to which the Company or any of the Company Subsidiaries is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000a party;
(viii) (A) imposing on, or granting to, an Acquired Corporation each Contract with any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orGovernmental Entity;
(ix) any collective bargaining Contract pursuant to which the Company or any of the Company Subsidiaries has continuing guarantee, “earn-out” or other contingent payment obligations, in each case that would reasonably be expected to result in payments in excess of $3,000,000;
(x) any Contract that is a license agreement (including all regional licensing transactions), covenant not to sue agreement or other co-existence agreement or similar agreement, each of the foregoing that is material to the business of the Company and its Subsidiaries, taken as a whole, to which the Company or any of the Company Subsidiaries is a party and licenses in Intellectual Property Rights owned by a third party or licenses out any Company IP or agrees not to assert or enforce Company Owned IP, including each Company In-bound License (but excluding any Standard Contract), and each Company Out-bound License (but excluding any Standard Contract);
(xi) each Contract with a labor organization (A) pursuant to which the Company or works council representing any of its employees Subsidiaries may be required after the date of this Agreement to pay milestones, royalties or other contingent payments based on the results or outcome of any research, testing or development; regulatory filings or approval; sale; distribution; commercial manufacture or other similar occurrences, developments, activities or events, or (B) under which the Company or any of its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license, or any other similar Contract.rights with respect to any product or product candidate of the Company or any Intellectual Property Rights owned or purported to be owned by or licensed to the Company or any of its Subsidiaries (or, following the Closing, with respect to any product or product candidate of Parent or any Intellectual Property Rights of Parent or any of its Subsidiaries);
(bxii) each employment agreement, offer letter, independent contractor agreement or other similar Contract with any employee, individual consultant, or independent contractor of the Company or any of its Subsidiaries that is not terminable at-will by the Company without less than 30 days’ notice and without any severance, or other cost or liability (other than costs and liabilities for work performed and expenses accrued prior to termination and notice or payments required under applicable Laws);
(xiii) each Contract with any employee, individual consultant, or independent contractor of the Company or any of its Subsidiaries or other Person providing for retention payments, change of control payments, severance, accelerated vesting or any other payment or benefit for any such employee, individual consultant, or independent contractor that may or will become due as a result of the Merger; and
(xiv) each Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any material business or any material amount of assets (excluding dispositions or acquisitions which were consummated prior to the date of this Agreement and with respect to which there is no ongoing material liability or material obligation of the Company or any Company Subsidiaries). Each contract, arrangement, commitment or understanding Contract of the type required to be described in this Section 3.9(a), whether or not set forth in Part 3.9(a3.11(b) of the and each Filed Company Disclosure Schedule, Contract is referred to herein as a “Company Material Contract”.”
(c) Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults matters which, individually or in the aggregate, have not had and would not reasonably be expected to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice each Company Material Contract (including, for purposes of Section 6.2(a), any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to Contract entered into after the date of this Agreement that would have been a complete Company Material Contract if such Contract existed on the date of this Agreement) (i) is a valid, binding and correct copy legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by the Bankruptcy and Equity Exception, and (including ii) is in full force and effect. None of Company or any of the Company Subsidiaries is (with or without notice or lapse of time, or both) in material amendmentbreach or default under any such Company Material Contract (including, modificationfor purposes of Section 6.2(a), extension any Contract entered into after the date of this Agreement that would have been a Company Material Contract if such Contract existed on the date of this Agreement) and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or renewal with respect theretowithout notice or lapse of time, or both) of each Material Contractin material breach or default thereunder.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (ACELYRIN, Inc.), Merger Agreement (Alumis Inc.)
Contracts. (aSection 2(k) Except as set forth in Part 3.9 of the Company Disclosure Schedule lists the following contracts, agreements, and other written arrangements (other than with advertisers for the sale of air time which are listed in Section 2(s) of the Disclosure Schedule, as of ) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, compensation agreement, employment agreement, commission agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Station;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess written arrangement concerning a guaranty by the Seller of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to the obligations of any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Personparty; or
(ix) any collective bargaining agreement other written arrangement (or other Contract with group of related written arrangements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. The Seller has delivered to the Buyer a labor organization or works council representing any correct and complete copy of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(k) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed which constitutes an Assumed Contract: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and enforceable and in full force and effect on identical terms following the Closing (if the arrangement has not expired according to the knowledge of the Company, none of the other parties thereto have, violated its terms); (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually if reduced to written form, would be required to be listed in Section 2(k) of the Disclosure Schedule under the terms of this Section 2(k). Except for the Assumed Contracts, the Buyer shall not have any Liability or obligations for or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice respect of any of the foregoing. The Company has made available to Parent or Parent’s Representatives contracts set forth in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect theretoSection 2(k) of each Material Contractthe Disclosure Schedule or any other contracts or agreements of the Seller. No advertiser of the Station has indicated within the past year that it will stop, or decrease the rate of, buying services from them.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. Schedule 3.14 of the Disclosure Schedule lists the following contracts, agreements and other written arrangements, true and complete copies of which have been delivered to the Buyer, to which the Company is a party:
(a) Except any written arrangement (or group of related written arrangements) for the lease of personal property from or to third parties providing for present or future lease payments in excess of $25,000 per year;
(b) any written arrangement (or group of related written arrangements) for the purchase or sale of raw materials, commodities, supplies, products or other personal properly or for the furnishing or receipt of services which either calls for performance over a period of more than one year or involves more than the sum of $5,000.00;
(c) any written arrangement concerning a partnership or joint venture;
(d) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $5,000.00 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(e) any written arrangement concerning confidentiality or noncompetition;
(f) any written arrangement with either of the Sellers or any of their Affiliates;
(g) any written arrangement under which the consequences of a default or termination have a material adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations or future prospects of the Company; or
(h) any other written arrangement (or group of related written arrangements) either involving more than $5,000.00 or not entered into in the Ordinary Course of Business. The Sellers have delivered to the Buyer a correct and complete copy of each written arrangement (as set forth amended to date) listed in Part 3.9 Schedule 3.14 of the Disclosure Schedule. With respect to each written arrangement so listed: (1) the written arrangement is legal, valid, binding, enforceable and in full force and effect except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting enforceability or the availability of equitable remedies; (2) the written arrangement will continue to be legal, valid, binding and enforceable and in full force and effect on identical terms following the Closing except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting enforceability or the availability of equitable remedies; (3) the Company is not, and the Sellers have no Knowledge that the other party is, in breach or default and no event has occurred which with notice or lapse of time would constitute a breach or default or permit termination, modification or acceleration, under the written arrangement; and (4) the Company has not, and the Sellers have no Knowledge that the other party has, repudiated any provision of the written arrangement. The Company is not a party to any verbal contract, agreement or other arrangement which, if reduced to written form, would be required to be listed in Schedule 3.14 of the Disclosure Schedule under the terms of this Section 3.14. There are no unfilled customer orders or commitments obligating the Company to process, manufacture or deliver products or perform services will result in a loss to the Company upon completion of performance in the Ordinary Course of Business. There are no purchase orders or commitments of the Company Disclosure Schedulein excess of normal requirements, as nor are prices provided therein in excess of the then-current market prices for the products or services to be provided thereunder. No supplier of the Company has indicated within the past year (dating from the date of this Agreement) that it will stop, neither or decrease the rate of, supplying materials, products or services to the Company nor any Subsidiary and no customer of the Company is a party to or is bound by any Contract:
has indicated within the past year (i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation dating from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendmentAgreement) that it will stop, modificationor decrease the rate of, extension buying materials, products or renewal with respect thereto) of each Material Contractservices from the Company.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Seaena Inc.), Membership Interest Purchase Agreement (Crystalix Group International Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 3.16 of the Company Parent Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Parent or any of its Subsidiaries is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” any agreement (as such term is defined in Item 601(b)(10or group of related agreements) for the lease of Regulation S-K of the Exchange Act)personal property from or to third parties;
(ii) pursuant to which the Acquired Corporations any agreement (taken as a wholeor group of related agreements) received revenues for the fiscal year ended September 27, 2014, purchase or is reasonably expected to receive revenues in a future annual period, in excess sale of $10,000,000products or for the furnishing or receipt of services;
(iii) pursuant to which the Acquired Corporations (taken as any agreement establishing a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a capital expenditure in excess security interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any agreement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any employment or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000consulting agreement;
(vii) that is an Inbound License any agreement involving any current or Outbound Licenseformer officer, in each case, that either (A) grants exclusive rights to director or from an Acquired Corporation stockholder of the Parent or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000any Affiliate thereof;
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Parent Material Adverse Effect;
(Aix) imposing onany agreement which contains any provisions requiring the Parent or any of its Subsidiaries to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess license of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts products entered into in the ordinary course of business and that relate solely business);
(x) any other agreement (or group of related agreements) either involving more than $5,000 or not entered into in the ordinary course of business; and
(xi) any agreement, other than as contemplated by this Agreement, relating to the Company’s publishing business and do not relate to sales of securities of the Company’s book manufacturing business, Parent or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees Subsidiaries to which the Parent or any other similar Contractsuch Subsidiary is a party.
(b) Each contract, arrangement, commitment The Parent has delivered or understanding made available to the Company a complete and accurate copy of each agreement listed in Section 3.16 of the type required Parent Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be described legal, valid, binding and enforceable and in Section 3.9(a), whether or not set forth in Part 3.9(a) of full force and effect immediately following the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire Closing in accordance with their the terms during thereof as in effect immediately prior to the Pre-Closing Period Closing; and (excluding, for iii) neither the avoidance Parent nor any of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andits Subsidiaries nor, to the knowledge of the CompanyParent, each any other party theretoparty, is in breach or violation of, or default under, any such agreement, and in full force and effectno event has occurred, except as may be limited by bankruptcyis pending or, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the CompanyParent, none is threatened, which, after the giving of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, with lapse of time or both otherwise, would constitute a material default, under breach or default by the provisions of any Material Contract, except in each case for those violations and defaults which, individually Parent or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior its Subsidiaries or, to the date knowledge of this Agreement a complete and correct copy (including the Parent, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 2 contracts
Sources: Merger Agreement (U.S. Rare Earth Minerals, Inc), Merger Agreement (First Harvest Corp.)
Contracts. (a) Except as set forth in Part 3.9 Schedule 3.13(a) identifies each of the Company Disclosure Schedulefollowing Contracts used in connection with the Pipelogic Business to which Pipelogic is a party or by which it or its properties is bound (each such identified Contract, a “Material Contract”):
(i) any Contract that provides for the payment or potential payment by Pipelogic of more than $50,000 in any consecutive 12-month period or more than $50,000 over the remaining life of such Contract other than a Contract that (A) is terminable by any party thereto giving notice of termination to the other party thereto not more than sixty (60) days in advance of the proposed termination date and (B) even if so terminable, contains no post-termination obligations, termination penalties, buy-back obligations or similar obligations;
(ii) any Contract that constitutes a purchase order or other Contract relating to the sale, purchase, lease or provision by Pipelogic of goods or services in excess of $50,000 in any 12-month period;
(iii) any Contract that grants any Person the exclusive right to sell products or provide services within any geographical region other than a Contract that (A) is terminable by any party thereto giving notice of termination to the other party thereto not more than sixty (60) days in advance of the proposed termination date and (B) even if so terminable, contains no post-termination obligations, termination penalties, buy-back obligations or similar obligations;
(iv) any Contract that purports to limit the freedom of Pipelogic to compete in any line of business or with any Person or to conduct business in any geographic location;
(v) any Contract relating to the acquisition or disposition by Pipelogic of the equity or assets of any company or any operating business or Interest of another Person (by asset sale, stock sale, merger or otherwise);
(vi) any Contract relating to the payment of any Tax or the filing of Tax Returns;
(vii) any Contract that is for the sale of goods or services and has not been substantially completed by Pipelogic as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to Agreement and which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights was entered into by Pipelogic on terms known at the time the Contract was entered into not to or from an Acquired Corporation be commercially reasonable or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000was entered into with the expectation that Pipelogic would incur a loss;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts Contract that was entered into in outside of the ordinary course Ordinary Course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing businessBusiness of Pipelogic since December 31, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or2017;
(ix) any collective bargaining agreement Contract constituting a partnership, joint venture or other similar Contract;
(x) any Contract relating to indebtedness for borrowed money, any Contract creating a capital lease obligation, any Contract for the sale or factoring of accounts receivable, any Contract constituting a guarantee of debt of any other Person or any Contract requiring Pipelogic to maintain the financial position of any other Person;
(xi) any Contract under which Pipelogic has made advances or loans to any other Person;
(xii) any outstanding agreements of guaranty, surety or indemnification (other than master services agreements entered into in the Ordinary Course of Business of Pipelogic), direct or indirect, by Pipelogic, in each case where the annual obligations under such agreement are more than $10,000;
(xiii) any Contract pursuant to which (A) Intellectual Property Rights that are material to the Pipelogic Business or involving consideration in excess of $5,000 is licensed to Pipelogic (other than license agreement for unmodified “off-the-shelf” software on generally standard terms and conditions involving total consideration of less than $10,000) or (B) Pipelogic has granted a right with respect to Intellectual Property Rights that are material to the Pipelogic Business or involving consideration in excess of $5,000;
(xiv) any Contract that provides for (A) the purchase or sale of real property or (B) the lease (including any master lease covering multiple items of personal property) of any item or items of personal property with a rental expense under such lease (whether for a single item or multiple items);
(xv) any Contract providing for the deferred payment of any purchase price including any “earn out” or other contingent fee arrangement;
(xvi) any Contract creating a Lien on any of the Pipelogic Assets that will not be discharged at or prior to the Closing;
(xvii) any Contract between Pipelogic, on the one hand, and any Affiliate of Pipelogic, on the other hand (including any Contract providing for (A) compensation, the acceleration of benefits or the loss of any rights in connection with the consummation of the transactions contemplated by this Agreement or (B) the indemnification of such Affiliate by Pipelogic);
(xviii) any Contract with a labor organization any Seller or works council representing any current or former officer, director, member, manager, partner, equityholder, consultant or employee of Pipelogic or any of its employees the foregoing;
(xix) any Contract providing for the employment or engagement of any Person on a full time, part time, consulting or other basis;
(xx) any Contract with any labor union or association or other Person representing or seeking to represent any employee of Pipelogic or any other individual who provides services to Pipelogic;
(xxi) any Contract between Pipelogic and any Governmental Authority;
(xxii) any Contract involving interest rate swaps, cap or collar agreements, commodity or financial future or option contracts or similar Contractderivative or hedging Contracts;
(xxiii) any Contract granting to any Person a right of first refusal, first offer or other right to purchase any of the Pipelogic Assets;
(xxiv) any Contract requiring Pipelogic to make a payment as a result of the consummation of the transactions contemplated hereby;
(xxv) any Contract containing a “most favored nation” clause or similar provision; and
(xxvi) any Contract with any professional employer organization, personnel staffing organization, employee leasing organization or other entity that provides personnel services or other employment related or employee benefit related services to Pipelogic.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(aTrue and complete copies (including all amendments) of each Material Contract have been furnished to Buyer. Each Material Contract is the Company Disclosure Schedulelegal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation obligation of Pipelogic, and, to the knowledge Knowledge of the CompanySellers, each any other Person party thereto, binding and enforceable against Pipelogic and, to the Knowledge of Sellers, any other Person party thereto, in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditorsaccordance with its terms subject to Creditors’ rights generally and by general principles of equityRights. No Acquired Corporation hasMaterial Contract has been terminated, and neither Pipelogic nor, to the Knowledge of Sellers, any other Person is in material breach or default thereunder, and to the knowledge Knowledge of the Company, none Sellers no event has occurred that with notice or lapse of the other parties thereto have, violated in any material respect any provision oftime, or committed or failed to perform any actboth, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material breach or default, or permit termination, modification in any manner adverse to Pipelogic or acceleration thereunder. No party has asserted or has (except by operation of Legal Requirements) any right to offset, discount or otherwise ▇▇▇▇▇ any amount owing under the provisions of any Material Contract, Contract except as expressly set forth in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each such Material Contract. There are no Material Waivers regarding any Material Contract that have not been disclosed in writing to Buyer.
Appears in 2 contracts
Sources: Purchase and Contribution Agreement, Purchase and Contribution Agreement (Sentinel Energy Services Inc.)
Contracts. (a) Except as set forth in Part 3.9 of the Company Disclosure Schedule, as of the date of for this Agreement, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contract:
Contract (i) that which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
SEC) to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Company SEC Documents; (ii) pursuant which constitutes a Contract or commitment 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) in excess of $250,000; (iii) which contains any provision that would restrict or affect the Acquired Corporations conduct of business of any Affiliate of the Company (or any Affiliate of any such Affiliate of the Company); (iv) that (A) contains most favored customer pricing provisions or (B) grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any person, in each case under this clause (B) in a manner which is material to the business of the Company and its Subsidiaries, taken as a whole; (v) received revenues for the fiscal year ended which was entered into after September 27, 20142008 or not yet consummated for the acquisition or disposition, directly or is reasonably expected to receive revenues in a future annual periodindirectly (by merger or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration in excess of $10,000,000;
250,000 (iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, other than acquisitions or is reasonably expected to make expenditures in a future annual period, in excess dispositions of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere assets in the world;
ordinary course of business); (vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness which by its terms calls for aggregate payments by the Company or any Subsidiary its Subsidiaries of more than $250,000 over the Company, in excess of $5,000,000;
remaining term; (vii) that is an Inbound License which the Company or Outbound Licenseany of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case, that either (A) grants exclusive rights would reasonably be expected to or from an Acquired Corporation or (B) requires aggregate result in payments to or from an Acquired Corporation in excess of $250,000;
; or (viii) (A) imposing on, or granting to, an Acquired Corporation which grants any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, material Company Intellectual Property (other than sales representationcommercially available, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar off-the-shelf software). Each Contract.
(b) Each contract, arrangement, commitment commitment, agreement, license, permit, bond, mortgage, indenture or understanding of the type required to be described in clauses (i) through (vii) of this Section 3.9(a)4.11, whether or not set forth in Part 3.9(a) of the Company Disclosure ScheduleLetter or in the Company SEC Documents, is referred to herein as a “Material Company Contract.” Except (for Material Contracts that expire purposes of clarification, each “material contract” (as such term is defined in accordance with their terms during the PreItem 601(b)(10) of Regulation S-Closing Period (excluding, for the avoidance of doubt, early termination), all K of the Material SEC) to be performed after the date of this Agreement, whether or not filed with the SEC, is a Company Contract). A true and complete list of the Company Contracts are is set forth in Section 4.11(a) of the Company Disclosure Letter.
(b) (i) Each Company Contract is valid and binding on the applicable Acquired Corporation and, to the knowledge Company and any of the Company, each other its Subsidiaries that is a party thereto, as applicable, and in full force and effecteffect and (ii) the Company, except as may each of its Subsidiaries and each other party to each Company Contract, has performed all obligations required to be limited performed by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equityit under each Company Contract. No Acquired Corporation has, and to To the knowledge Knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition existsexists which constitutes, which with or, after notice or without notice, lapse of time or both would constitute both, will constitute, a material defaultdefault under any such Company Contract on the part of the Company, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent its Subsidiaries or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect other party thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Naf Holdings Ii, LLC), Merger Agreement (Hampshire Group LTD)
Contracts.
(a) Except as set forth in Part 3.9 Section 4.8(a) of the Company Disclosure ScheduleLetter contains an accurate and complete list, as of the date of this Agreement, neither of all Contracts (other than any Company Benefit Plan) in effect as of the date hereof, of the following types to which the Company nor or any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contract:(the “Company Material Contracts”):
(i) any Contract that is filed by the Company as a “material contract” (as such term is defined in Contract pursuant to Item 601(b)(10) of Regulation S-K of the Exchange Act)SEC, other than Contracts described in Item 601(b)(10)(iii) of Regulation S-K;
(ii) pursuant any Contract that expressly imposes any restriction on the right or ability of the Company and its Subsidiaries, collectively, to which compete with any other Person (or in any line of business, market or geographical area), other than any such Contracts that may be cancelled without material liability to the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, Company or is reasonably expected to receive revenues in a future annual period, in excess any of $10,000,000its Subsidiaries upon notice of 90 days or less;
(iii) pursuant any Contract containing any (A) “most favored nation” or similar provisions, (B) exclusivity provisions or (C) rights of first refusal or first offer, other than any such Contracts that may be cancelled without material liability to the Company or any of its Subsidiaries upon notice of 90 days or less, (in each case, other than any agreement in which any of the Acquired Corporations (taken as a whole) made expenditures foregoing provisions is solely for the fiscal year ended September 27, 2014, benefit of the Company or is reasonably expected to make expenditures in a future annual period, in excess any of $2,500,000its Subsidiaries);
(iv) evidencing a capital expenditure any Contract that in excess the year ended December 31, 2022 was (or in the year ending December 31, 2023 is reasonably expected to be) one of $2,500,000the ten (10) largest sources of revenues for the Company and its Subsidiaries for the applicable year based on amounts paid or payable;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere Contract that in the worldyear ended December 31, 2022 was (or in the year ending December 31, 2023 is reasonably expected to be) one of the ten (10) largest sources of payment obligations for the Company and its Subsidiaries, based on amounts paid or payable;
(vi) any Contract that involves a (A) revenue or profit sharing or similar agreement under which the Company or any of its Subsidiaries has outstanding commitments (other than any Company Benefit Plan) or (B) “minimum purchase” requirement, “take or pay,” “ship or pay” or similar obligations, in each case with outstanding commitments in an amount in excess of $50,000, in any calendar year;
(vii) any Contract relating to indebtedness for borrowed money of (or evidencing Indebtedness, including guarantees thereof by) the Company or any guarantee of Indebtedness its Subsidiaries (other than any such indebtedness owed by the Company or any wholly owned Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company, in excess of $5,000,000and guarantees thereof);
(viiviii) any Contract that is an Inbound License provides for the acquisition or Outbound Licensedisposition of any assets (other than acquisitions or dispositions of inventory or the purchase or sale of Hydrocarbons, in each case, in the ordinary course of business consistent with past practice) or business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any Person, in each case, with any material outstanding obligations as of the date of this Agreement;
(ix) each partnership, joint venture or limited liability company agreement;
(x) any Contract relating to any Derivative Transaction;
(xi) the Sealy Ranch Lease;
(xii) each joint development agreement, exploration agreement, participation, farmout, farming or program agreement or similar Contract that either (A) grants exclusive rights requires the Company or any of its Subsidiaries to or make expenditures from an Acquired Corporation and after January 1, 2023 that would reasonably be expected to be in excess of Fifty Thousand Dollars ($50,000) in the aggregate or (B) requires aggregate payments is material to or from an Acquired Corporation in excess the operation of $250,000the Company and its Subsidiaries, taken as a whole;
(viiixiii) (A) imposing onany Contract for the gathering, transportation, processing, treating or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess sale of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any PersonHydrocarbons, other than sales representationany such Contracts that may be cancelled without material liability to the Company or any of its Subsidiaries upon notice of 30 days or less;
(xiv) any Contract pursuant to which the Company or any of its Subsidiaries has an obligation to make an investment in or loan to any other Person (other than in or to any wholly owned Subsidiary of the Company);
(xv) any Contract with any Governmental Authority, distribution, licensing and similar contracts other than Contracts entered into in the ordinary course of business and that relate solely to business; and
(xvi) any Contract involving the Company’s publishing business and do not relate to the Company’s book manufacturing businesssettlement, conciliation or similar agreement of any Litigation or threatened Litigation (A) with any Governmental Authority or (DB) requiring an Acquired Corporation pursuant to purchase all of its requirements of a specified good which the Company or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees Subsidiaries are party thereto and that restricts in any material respect the operations or conduct of the Company or any other similar Contractof its Subsidiaries after the date hereof.
(b) Each contract, arrangement, commitment or understanding of Neither the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) Company nor any Subsidiary of the Company Disclosure Schedule, is referred to herein as a “in breach of or default under any Company Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation Contract and, to the knowledge Knowledge of the Company, each as of the date hereof, no other party thereto, and to any Company Material Contract is in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles breach of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in or default under any material respect any provision of, or committed or failed to perform any actCompany Material Contract, and no event has occurred through the Company’s or condition existsany of its Subsidiaries’ action, which that with notice or without notice, the lapse of time or both would constitute a material defaultbreach of or default or result in the termination of or a right of termination or cancelation thereunder, under accelerate the provisions performance or obligations required thereby, or result in the loss of any benefit under any Company Material Contract, except in each case for those violations and defaults whichexcept as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Company Material Contract (i) is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the Knowledge of the Company, of each other party thereto, and (ii) is in full force and effect, subject to the Enforceability Exceptions, in each case except as would not reasonably be expected to result have, individually or in the aggregate, a Company Material Adverse Effect, and no Acquired Corporation . Neither the Company nor any of its Subsidiaries has received any written notice of any of other party to a Company Material Contract to terminate for default, convenience or otherwise, or not renew, any Company Material Contract, in each case, except as would not reasonably be expected to have, individually or in the foregoing. aggregate, a Company Material Adverse Effect.
(c) The Company has made available to Parent or Parent’s Representatives all joint operating agreements in the Data Room prior to effect as of the date hereof, to which the Company or any of this Agreement its Subsidiaries is a complete and correct copy party or bound (including any material amendmentcollectively, modification, extension or renewal with respect thereto) of each Material Contractthe “Joint Operating Agreements”).
Appears in 2 contracts
Sources: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Contracts. (a) The Company has made available to Parent true, complete and correct copies of the following agreements scheduled in Section 4.7 of the Company Disclosure Schedule (the "Contracts") to which the Company or any Subsidiary is a party:
(i) other than sales orders entered into in the ordinary course, agreements with consideration in excess of $100,000;
(ii) agreements involving performance over a period of more than one year with consideration in excess of $100,000;
(iii) agreements containing confidentiality or non-competition provisions;
(iv) other than purchase orders entered into in the ordinary course, any agreement concerning a partnership or joint venture or any other agree ment involving a sharing of profits, losses, costs, or liabilities by the Company or any of its Subsidiaries with any other Person;
(v) other than purchase orders entered into in the ordinary course, any agreement under which the Company or any of its Subsidiaries has created, incurred, assumed or guaranteed any indebtedness or any capitalized lease obligation, in excess of $50,000;
(vi) any agreement entered into during the prior three years, providing for the acquisition or disposition of a significant amount of assets or a line of business;
(vii) any agreement entered into during the prior three (3) years, providing for the purchase, redemption or issuance of Common Stock the performance of which involves consideration of more than $250,000 other than redemption of Common Stock pursuant to the Company's stock repurchase plan announced in the Company's Quarterly Report for the quarter ended March 31, 2000, filed May 12, 2000, by which the Company is authorized to repurchase up to $1,000,000 of its shares (through December 31, 2000, the Company had repurchased 22,300 shares of its Common Stock for $324,000); and
(viii) each material written amendment, supplement and modification in respect of any of the foregoing.
(b) To the Knowledge of the Company, (i) all Contracts are in full force and effect and constitute valid and binding agreements of the Company or its Subsidiaries and the other parties thereto in accordance with their respective terms, and (ii) the consummation of the transactions contemplated hereby will not, in any material respect, violate, or constitute a breach under, any such Contract. Except as set forth in Part 3.9 of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a4.7(b) of the Company Disclosure Schedule, is referred to herein as neither the Company nor any of its Subsidiaries are in default in any material respect under any of such written Contracts, have not received any written notice of such a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingdefault, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge Knowledge of the Company, each : (i) no other party thereto, and to any such Contract is in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated default in any material respect any provision of, or committed or failed to perform any act, thereunder and (ii) no event has occurred or condition exists, which exists that with notice or without notice, lapse of time or both would constitute such a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractdefault thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Richton International Corp), Merger Agreement (FRS Capital Co LLC)
Contracts. Schedule 4.12 sets forth a true, correct and complete list of the following written contracts, agreements, leases, commitments and other instruments to which a Seller is, or is performing obligations as though it were, a party (other than the Employment Agreements set forth on Schedule 4.14 and the Seller Benefit Plans set forth on Schedule 4.15), in each case only to the extent related to, in connection with or otherwise affecting the Assets, the Business or the ownership or operation of the Assets or the Business but only to the extent they will become Assumed Contracts:
(a) Except as set forth in Part 3.9 each lease or license involving any Assets (whether real, personal or mixed, tangible or intangible) involving an annual commitment or payment of more than $2,500,000 individually by any of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company Sellers;
(b) all contracts and agreements to which a Seller is a party to that limit or is bound by restrict any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)Sellers or any Key Business Employees of any of the Sellers from engaging in any business in any jurisdiction;
(iic) pursuant to which all contracts and agreements for capital expenditures or the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, acquisition or is reasonably expected to receive revenues in a future annual periodconstruction of fixed assets, in excess each case requiring the payment by any of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for Sellers after the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, date hereof of an amount in excess of $2,500,000;
(ivd) evidencing all contracts that provide for an increased payment or benefit, or accelerated vesting, upon the execution hereof or the Closing or in connection with the transactions contemplated hereby;
(e) all contracts and agreements granting any Person a capital expenditure Lien (other than a Permitted Lien) on all or any part of the Assets;
(f) all contracts and agreements for the cleanup, abatement or other actions in connection with any Hazardous Materials, the remediation of any existing environmental condition or relating to the performance of any environmental audit or study;
(g) all contracts and agreements granting to any Person an option or a first refusal, first-offer or similar preferential right to purchase or acquire any of the Assets;
(h) all contracts and agreements with any agent, distributor or representative that is not terminable without penalty on 90 days’ or fewer notice;
(i) all contracts and agreements for the granting or receiving of a license, sublicense or franchise under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment in excess of $2,500,000100,000 annually;
(vj) containing a covenant prohibiting all joint venture or restricting partnership contracts and all other contracts providing for the sharing of any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in profits (but excluding the worldlimited partnership agreement of Huntsman Fuels);
(vik) relating to all customer and supplier contracts, not terminable without penalty on 90 days’ or evidencing Indebtedness, including any guarantee of Indebtedness fewer notice either by the Company Seller party thereto or any Subsidiary the applicable customer or supplier, for the provision of the Company, goods or services with a value in excess of $5,000,0002,500,000 in any year during the two-year period ended December 31, 2005 by any of the Sellers;
(viil) all outstanding powers of attorney empowering any Person to act on behalf of any of the Sellers that would be binding on the Purchaser as a result of the closing of the transactions under this Agreement;
(m) the software license agreements set forth on Schedule 4.12(m) (“Transferred Software License Agreements”); and
(n) all existing contracts, agreements, arrangements and commitments (other than those described in subsections (a) through (m) of this Section 4.12) to which any of the Sellers is a party or by which the Assets are bound (i) involving an annual commitment or annual payment to or from such Seller of more than $2,500,000 individually or (ii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely material to the Company’s publishing business Business, individually. True, correct and do not relate complete copies of the Assumed Contracts described above in this Section 4.12 have been made available to the Company’s book manufacturing businessPurchaser or its representatives or agents. Subject to the following paragraph, or (D) requiring an Acquired Corporation to purchase the Assumed Contracts are legal, valid, binding and enforceable in all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire material respects in accordance with their respective terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, with respect to the knowledge of the Company, each other Sellers that are a party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasto such Assumed Contracts, and to the knowledge Sellers’ Knowledge with respect to each other Person party thereto, subject in each case to applicable bankruptcy, insolvency and other similar Laws affecting the enforceability of creditors’ rights generally, general equitable principles and the discretion of courts granting equitable remedies. There is no existing material default or breach by any of the Company, none of the other parties thereto have, violated in Sellers under any material respect any provision of, Assumed Contract (or committed or failed to perform any act, and no event or condition existsthat, which with notice or without notice, lapse of time or both would could constitute a material defaultdefault or breach), under and to the provisions Sellers’ Knowledge, there is no such material default (or event or condition that, with notice or lapse of time or both, could constitute a material default or breach) with respect to any third party to any such Assumed Contract. As of the date hereof, no party to any Assumed Contract is (x) repudiating any provision thereof, (y) failing to perform its obligations thereunder claiming force majeure or other right to suspend performance or (z) claiming any right to offset, discount or otherwise ▇▇▇▇▇; in each case, in respect of any Material Contractmaterial amount or performance obligation owing thereunder, except in each case for those violations and defaults whichexcept, individually or in the aggregatecase of clause (z), would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any only as expressly permitted by the applicable contract. None of the foregoingrights of either Seller in the Assumed Contracts is subject to a Lien other than a Permitted Lien. Schedule 4.12 identifies with an asterisk each Assumed Contract set forth therein that requires the consent of or notice to the other party thereto to avoid any breach, default or violation of such contract, agreement or other instrument in connection with the transactions contemplated hereby, including the assignment of such Assumed Contract to the Purchaser. The Company representations and warranties in this Section 4.12 in respect of MTBE Contracts are given only as of the date hereof. Certain of the Assumed Contracts may not in fact have been executed on behalf of a Seller and/or other Person party (or intended to be party) thereto or may have expired or be beyond their term. The Purchaser accepts the risk that if in fact any such contract was not fully executed or has made available expired or is beyond its term, it may not be enforceable by the Sellers (or after the Closing, the Purchaser), against any other party thereto. Subject to Parent or Parent’s Representatives the preceding sentence, all representations and warranties of the Sellers in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal paragraph immediately above shall apply with respect thereto) of to each Material Contractsuch contract as if it had been fully and validly executed, or was within its stated term, as applicable.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Huntsman International LLC), Asset Purchase Agreement (Texas Petrochemicals Inc.)
Contracts. (a) Except as set forth in Part 3.9 of the Company Disclosure Schedule, as of the date For purposes of this Agreement, neither the Company nor any Subsidiary each of the following shall be deemed to constitute a "Company is a party to or is bound by any Material Contract":
(i) any Acquired Corporation Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K required by the rules and regulations of the Exchange Act)SEC to be filed as an exhibit to the Company SEC Documents;
(ii) any Acquired Corporation Contract relating to the employment of any employee, and any Contract pursuant to which any of the Acquired Corporations is or may become obligated to make any severance, termination, bonus or relocation payment or any other payment (other than payments in respect of salary) in excess of $100,000, to any current or former employee or director;
(iii) any Acquired Corporation Contract relating to the acquisition, transfer, development, sharing or license of any material Proprietary Asset (except for any Acquired Corporation Contract pursuant to which (A) any material Proprietary Asset is licensed to the Acquired Corporations under any third party software license generally available for sale to the public, or (B) any material Proprietary Asset is licensed by any of the Acquired Corporations to any Person on a non-exclusive basis);
(iv) any Acquired Corporation Contract which provides for indemnification of any officer, director or employee;
(v) any Acquired Corporation Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(vi) any Acquired Corporation Contract that involves the payment or expenditure of $100,000 or more in any 12-month period or more than $200,000 in the aggregate that may not be terminated by the applicable Acquired Corporation (without penalty) within sixty (60) days after the delivery of a termination notice by the applicable Acquired Corporation;
(vii) any Acquired Corporation Contract contemplating or involving (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $100,000 in the aggregate, or (B) the performance of services having a value in excess of $100,000 in the aggregate;
(viii) any Acquired Corporation Contract imposing any restriction on the right or ability of any Acquired Corporation to (A) compete with any other Person, (B) acquire any material product or other material asset or any services from any other Person, sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any other manner with any other Person, or (C) develop or distribute any material technology; and
(ix) any other Acquired Corporation Contract, if a breach of such Acquired Corporation Contract could reasonably be expected to have a Material Adverse Effect on the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract).
(b) Each contractCompany Material Contract is valid and in full force and effect, arrangement, commitment or understanding and is enforceable in accordance with its terms.
(c) None of the type required Acquired Corporations has violated or breached, or committed any material default under, any Company Material Contract. To the Company's knowledge, no other Person has violated or breached, or committed any material default under, any Company Material Contract.
(d) To the Company's knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) could reasonably be expected to be described (i) result in Section 3.9(aa material violation or breach of any provision of any Company Material Contract by any of the Acquired Corporations; (ii) give any Person the right to declare a material default or exercise any material remedy under any Company Material Contract; (iii) to the Company's knowledge, give any Person the right to receive or require a material rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (iv) give any Person the right to accelerate the maturity or performance of any Company Material Contract; or (v) give any Person the right to cancel or terminate, or modify in any material respect, any Company Material Contract.
(e) None of the Acquired Corporations is a guarantor or otherwise liable for any liability or obligation (including indebtedness) of any other Person other than any of the Acquired Corporations.
(f) Schedule 2.7(f) of the Company Disclosure Schedule provides a list of all Company Material Contracts (including all amendments thereto), whether . The Company has provided or not set forth made available to Parent a copy of each Company Material Contract (including all amendments thereto) listed in Part 3.9(aSchedule 2.7(g) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for other than Company Material Contracts that expire in accordance with their terms during filed as exhibits to the Pre-Closing Period (excluding, for Company SEC Documents and all copies of all amendments to the avoidance of doubt, early termination), all of the Company Material Contracts are valid and binding on filed as exhibits to the applicable Acquired Corporation andCompany SEC Documents, to the knowledge of extent such amendments have not been filed with the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No SEC.
(g) Neither Company nor any Acquired Corporation has, and is a party to any contract with the knowledge of the Company, none of the United States government or to any other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Government Contract.
Appears in 2 contracts
Sources: Merger Agreement (Titan Corp), Merger Agreement (Titan Corp)
Contracts. (a) Except as set forth in Part 3.9 Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company Disclosure Schedule, or any Subsidiary is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than 12 months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Acquired Corporations (taken as Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, each establishes a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under the Securities Exchange Act of 1934 (the “Exchange Act”), thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party theretothereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business); and
(x) any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.13 of the Disclosure Schedule: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, except valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as may be limited by bankruptcyin effect immediately prior to the Closing; and (iii) neither the Company nor any Subsidiary nor, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or any Subsidiary or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any knowledge of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including Company, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 2 contracts
Sources: Merger Agreement (Ethanex Energy, Inc.), Merger Agreement (Kreido Biofuels, Inc.)
Contracts. (a) Except (v) for this Agreement, (w) for the Contracts filed as set forth in Part 3.9 of exhibits to the Company Disclosure Schedule, as of Parent SEC Reports filed prior to the date of this Agreement, (x) for Parent Plans and Parent Stock Plans, (y) for any contracts that are terminable (and will continue to be terminable after the Effective Time) by Parent or any of its subsidiaries party thereto on no more than sixty (60) days’ notice without material penalty or other liability or (z) as set forth in Section 4.9 of the Parent Disclosure Schedule, neither the Company Parent nor any Subsidiary of its subsidiaries, as of the Company date hereof, is a party to or is bound by any ContractContract that:
(i) that is required to be filed by Parent as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) 601 of Regulation S-K of under the Exchange Securities Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company contains covenants binding upon Parent or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound Licenseits subsidiaries, in each case, that either are material to Parent and its subsidiaries, taken as a whole, that (A) grants exclusive rights restrict the ability (other than to the extent described in clause (C)(1) below) of Parent (or, following the Effective Time, the Surviving Company or from an Acquired Corporation its subsidiaries) or (B) requires aggregate payments any of its subsidiaries or Affiliates to engage or from an Acquired Corporation compete in excess any business or sell, supply, acquire, license or distribute any product or service, in each case, in any market or geographic area, with any Person or during any period of $250,000;
(viii) (A) imposing ontime, or granting tothat would require the disposition of any material assets or line of business of Parent or its subsidiaries, an Acquired Corporation any future minimum take-or-pay requirements , in excess of $100,000each case, after the Effective Time, the Surviving Company or its subsidiaries, (B) granting (1) grant “most favored nation,” “most favored customer” or similar status to another Person and (2) pursuant to such Contract Parent or any Personof its subsidiaries collectively received, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 or (C) granting (1) include exclusive or preferred purchasing arrangements or similar provisions expressly obligating Parent or any type of exclusive rights its subsidiaries to obtain all of its requirements for, or a minimum quantity of, certain merchandise exclusively from any Personvendor for merchandise resold by Parent or any of its subsidiaries, other than sales representationexcept, distributionin each case, licensing and similar contracts any purchase orders entered into in the ordinary course of business and (2) pursuant to such Contract Parent or any of its subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000;
(iii) is a services agreement, equipment lease, logistics agreement, information technology agreement or agreement related to software (other than any architectural or construction-related Contract) in connection with which or pursuant to which Parent or any of its subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 to any Person;
(iv) other than with respect to any partnership or limited liability company that relate solely is wholly owned by Parent or any of its wholly-owned subsidiaries, is a joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the Company’s publishing business formation, creation, operation, management or control of any joint venture, partnership, limited liability company or other similar Person, in each case, that is material to Parent and do not relate its subsidiaries, taken as a whole;
(v) is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond or any other Contract relating to indebtedness for borrowed money or the Company’s book manufacturing businessdeferred purchase price for property, in each case having an outstanding amount in excess of $5,000,000 individually, other than any such Contract between or among any of Parent and any of its wholly-owned subsidiaries;
(vi) prohibits the payment of dividends or distributions in respect of the capital stock of Parent or any of its subsidiaries, prohibits the pledging of the capital stock of Parent or any subsidiary of Parent, prohibits the issuance of guarantees by Parent or any subsidiary of Parent or grants any rights of first refusal or rights of first offer or similar rights or that limits or proposes to limit the ability of Parent or any of its subsidiaries or Affiliates to sell, transfer, pledge or otherwise dispose of any assets or businesses, in each case, that is material to Parent and its subsidiaries, taken as a whole;
(vii) is an agreement under which Parent or any of its subsidiaries has any obligations to make a capital contribution to, or other investment in the securities of, any Person (Dother than (A) requiring to Parent or any of its wholly-owned subsidiaries, (B) extensions of credit in the ordinary course of business consistent with past practice and (C) investments in marketable securities in the ordinary course of business), in each case, that is material to Parent and its subsidiaries, taken as a whole;
(viii) is an Acquired Corporation agreement with respect to any acquisition or divestiture (other than, for the avoidance of doubt, for acquisitions or dispositions of inventory, merchandise, products, services, properties and assets in the ordinary course of business) pursuant to which Parent or any of its subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to result in payments in excess of $10,000,000;
(ix) is between Parent or any of its subsidiaries, on the one hand, and any director or officer of Parent or any Person beneficially owning five percent (5%) or more of the outstanding shares of Parent Common Stock or any of their respective Affiliates, on the other hand, except for any Parent Plan;
(x) contains a standstill or similar agreement that will be in effect as of the Closing pursuant to which Parent or any of its subsidiaries has agreed not to acquire assets or securities of another Person;
(xi) contains a put, call or similar right pursuant to which Parent or any of its subsidiaries could be required to purchase all or sell, as applicable, any equity interests of any Person or assets, in each case with a value in excess of $10,000,000;
(xii) is a Parent Material Real Property Lease;
(xiii) is a Contract (including purchasing agreements, group purchasing agreements and excluding work orders, statements of work, purchase orders and similar contracts) pursuant to which Parent or any of its requirements of a specified good or service from subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 to any Person; or
(ixxiv) any collective bargaining agreement or other Contract is with a labor organization or works council representing any of its employees or any other similar ContractParent’s top ten (10) commercial payors (measured by prescription revenue of Parent during the twelve (12) month period ended on December 2, 2017) (the “Parent Key Payors”).
(b) Each contract, arrangement, commitment Contract set forth or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) Section 4.9 of the Company Parent Disclosure Schedule, Schedule or filed as an exhibit (or incorporated by reference) to the Parent SEC Reports filed prior to the date of this Agreement as a “material contract” pursuant to Item 601 of Regulation S-K under the Securities Act (and to the extent so disclosed as a “material contract” under Regulation S-K in force as of the date hereof) is referred to herein as a “Parent Material Contract.” Except for Each of the Parent Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are is valid and binding on the applicable Acquired Corporation Parent or its subsidiaries party thereto, as applicable, and, to the knowledge of the CompanyParent, each other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and subject to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, Bankruptcy and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material ContractEquity Exception, except (i) to the extent that any Parent Material Contract expires in each case accordance with its terms and (ii) for those violations such failures to be valid and defaults whichbinding or to be in full force and effect that have not had and would not, individually or in the aggregate, would not reasonably be expected to result have a Parent Material Adverse Effect. Except as has not had and would not, individually or in the aggregate, reasonably be expected to have a Company Parent Material Adverse Effect, as of the date hereof, (A) Parent and no Acquired Corporation its subsidiaries have in all material respects performed all obligations required to be performed by them under each Parent Material Contract and, to the knowledge of Parent, each other party to each Parent Material Contract has in all material respects performed all obligations required to be performed by it under such Parent Material Contract, (B) neither Parent nor any of its subsidiaries have received written notice of from any other party to a Parent Material Contract that such other party intends to terminate any such Parent Material Contract (except in accordance with the terms thereof) and (C) there is no default under any Parent Material Contract by Parent or any of its subsidiaries and, to the foregoing. The Company knowledge of Parent, no event has made available to occurred that, with the lapse of time or the giving of notice or both, would constitute a default thereunder by Parent or Parent’s Representatives in the Data Room prior to the date any of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractits subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Albertsons Companies, LLC), Merger Agreement (Rite Aid Corp)
Contracts. (a) Except as set forth in Part 3.9 Section 3.14(a) of the Company Disclosure ScheduleSchedule sets forth, as of the date of this Agreement, neither a true and complete list, and the Company nor has made available to Parent prior to the date of this Agreement true and complete copies (including all amendments, modifications, extensions, renewals, schedules, exhibits or ancillary agreements with respect thereto), of, excluding any Subsidiary of the Company is a party to or is bound by any ContractBenefit Plan:
(i) each Contract that is would be required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K of under the Exchange Securities Act);
(ii) pursuant each Contract to which the Acquired Corporations (taken as Company or any of the Company Subsidiaries is a whole) received party involving expected annual revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, expenditures in excess of $10,000,000250,000 in 2024 or any year thereafter;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures each Contract providing for the fiscal year ended September 27acquisition or disposition of assets or securities by or from any Person or any business (or any contract providing for an option, 2014right of first refusal or offer or similar rights with respect to any of the foregoing) (A) entered into since July 14, 2021 that involved or is would reasonably be expected to make expenditures in a future annual period, involve the payment of consideration in excess of $2,500,000;
(iv) evidencing a capital expenditure 250,000 in excess the aggregate with respect to such Contract or series of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic arearelated Contracts, or from soliciting customers (B) that contains (or employeeswould contain, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
case of an option, right of first refusal or offer or similar rights) ongoing representations, warranties, covenants, indemnities or other obligations (viincluding “earn-out,” contingent value rights or other contingent payment or value obligations) relating to that would involve the receipt or evidencing Indebtedness, including making of payments or the issuance of any guarantee equity securities of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound Licenseits Subsidiaries, in each case, that either (A) grants exclusive rights to or from case having an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation expected value in excess of $250,000;
(viiiiv) each Contract to which the Company or any of the Company Subsidiaries is a party that restricts in any material respect the ability of the Company or any of the Company Subsidiaries (A) imposing onto compete or engage in any line of business or with any Person in any geographical area, (B) to sell, supply or distribute any material the Company Offering, use or enforce any material Intellectual Property Rights owned by or exclusively licensed to the Company or any Company Subsidiary, (C) to solicit any (potential or actual) customer or supplier, or granting to(D) that otherwise has the effect of materially restricting the Company, an Acquired Corporation the Company Subsidiaries or any future minimum take-or-pay requirements of their respective affiliates (including Parent and its affiliates after the Effective Time) from the development, marketing or distribution of the Company Offerings, in each case, in any geographic area;
(v) each Contract to which the Company or any of the Company Subsidiaries is a party that is material and obligates the Company or any Company Subsidiary to conduct business with any third party on a preferential or exclusive basis, or that contains or expressly purports to contain material exclusivity or “most favored nation” obligations, material rights of first refusal, material rights of first offer, material put or call rights or other similar provisions that are binding on the Company or any Company Subsidiary or that would be so binding on Parent or any of its Affiliates after the Effective Time;
(vi) each loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, or other similar agreement pursuant to which any Indebtedness of the Company or any of the Company Subsidiaries (or owed to the Company or any of the Company Subsidiaries) in excess of $100,000, (B) granting “most favored nation,” “most favored customer” 250,000 is outstanding or similar status to any Person, (C) granting any type of exclusive rights to any Personmay be incurred, other than sales representationany such agreement between or among the Company and one or more Company Subsidiaries;
(vii) each partnership, distributionjoint venture or similar Contract to which the Company or any of the Company Subsidiaries is a party relating to the formation, licensing creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other than the wholly owned the Company Subsidiaries;
(viii) each Contract to which the Company or any of the Company Subsidiaries is a party that contains covenants, indemnities or other continuing obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the making by the Company or any Company Subsidiary of future payments in excess of $250,000;
(ix) each Contract pursuant to which the Company or the Company Subsidiaries receives from any third party a license or similar right to any Intellectual Property Right material to the Company and similar contracts entered into the Company Subsidiaries, taken as a whole, and that are not non-exclusive licenses granted in the ordinary course of business;
(x) each Contract with a Governmental Entity to which the Company or any Company Subsidiary is a party, and pursuant to which the Company or any Company Subsidiary has any material future obligation other than the provision of the Company Offerings in the ordinary course of business and consistent with past practice;
(xi) any Contract restricting the payment of dividends or the making of distributions in respect of any equity securities of the Company or any Company Subsidiaries or the repurchase or redemption of any equity securities of the Company or any Company Subsidiaries; and
(xii) each Contract that relate solely gives any Person the right to acquire any material assets of the Company’s publishing business and do not relate to the Company’s book manufacturing business, Company or any Company Subsidiary (D) requiring an Acquired Corporation excluding ordinary course commitments to purchase all of its requirements of a specified good the Company products) after the date hereof. Each agreement, understanding or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding undertaking of the type required to be described in this Section 3.9(a), whether or not set forth in Part 3.9(a3.14(a) of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract.” ”
(b) Except for matters which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Contracts that expire in accordance with their terms during the Pre-Closing Period Adverse Effect, (excludingi) each Company Material Contract (including, for the avoidance purposes of doubt, early terminationthis Section 3.14(b), all any Contract entered into after the date of this Agreement that would have been a Company Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of the Material Contracts are valid and binding on Company or one of the applicable Acquired Corporation Company Subsidiaries, as the case may be, and, to the knowledge Knowledge of the Company, each of the other party parties thereto, and except, in full force and effecteach case, except as enforcement may be limited by bankruptcy, insolvency, moratorium and other reorganization or similar applicable law Laws affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has; (ii) each such Company Material Contract is in full force and effect; (iii) none of the Company or any of the Company Subsidiaries is (with or without notice or lapse of time, and or both) in breach or default under any such Company Material Contract and, to the knowledge Knowledge of the Company, none no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder; (iv) to the Knowledge of the Company, each other party to a Company Material Contract has performed all material obligations required to be performed by it under such Company Material Contract; and (v) no party to a Company Material Contract has given the Company or any of the Company Subsidiaries notice (whether written or oral) of its intention to cancel, terminate, change the scope of rights under or fail to renew any Company Material Contract and neither the Company nor any of the Company Subsidiaries, nor, to the Knowledge of the Company, any other party to any Company Material Contract, has repudiated (whether orally or in writing) any material provision thereof. No Company Material Contract can be reasonably expected to prevent or materially delay the consummation of the Merger or any of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of transactions contemplated by this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractAgreement.
Appears in 2 contracts
Sources: Merger Agreement (Markforged Holding Corp), Merger Agreement (Nano Dimension Ltd.)
Contracts. (aSection 4(m) Except as set forth in Part 3.9 of the Company Disclosure ScheduleSchedule lists the following contracts, as of the date of this Agreementagreements, neither the Company nor any Subsidiary of the Company Customer Contracts or Agreements and other written arrangements to which Sigma6 is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written agreement (as such term is defined or group of related written agreements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$15,000 per annum;
(ii) pursuant to which the Acquired Corporations other than as referenced in paragraph (taken as a wholei) received revenues immediately preceding, any written agreement (or group of related written agreements) for the fiscal year ended September 27, 2014, furnishing or is receipt of services which Sigma6 reasonably expected to receive revenues in a future annual period, in excess projects will involve more than the sum of $10,000,00030,000 per annum or $50,000 over the life of such agreement;
(iii) pursuant to which the Acquired Corporations (taken as any written agreement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written agreement (or group of related written agreements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including lease obligations) involving more than $15,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement requiring confidentiality or restricting any Acquired Corporation from competing in any business or geographic areanoncompetition other than agreements with customers, or from soliciting customers or employees, licensors, vendors or otherwise restricting any Acquired Corporation from carrying on any business anywhere subcontractors in the worldOrdinary Course of Business;
(vi) relating to any written arrangement with any of its directors, officers, or evidencing Indebtednessemployees, including any guarantee of Indebtedness by the Company or any Subsidiary of its Affiliates other than standard contracts for service as employees or subcontractors in the Company, in excess Ordinary Course of $5,000,000;Business; and
(vii) that is an Inbound License any other written arrangement (or Outbound License, in each case, that group of related written arrangements) either (A) grants exclusive rights to involving more than $25,000 per annum or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts not entered into in the ordinary course Ordinary Course of business and that relate solely Business. Sigma6 has delivered to the Company’s publishing business Buyer a correct and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all complete copy of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a4(m) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation enforceable against Sigma6 and, to Sigma6 and Seller's Knowledge, the knowledge of the Company, each other party thereto, parties thereto and in full force and effect, subject to the Equitable Exceptions; (B) except as may set forth in Section 4(m) of the Disclosure Schedule, the written arrangement will continue to be limited by bankruptcylegal, insolvencyvalid, moratorium binding, enforceable and other similar applicable law affecting creditors’ rights generally in full force and by general principles of equity. No Acquired Corporation haseffect on identical terms immediately following the Closing, and subject to the knowledge Equitable Exceptions and if Newco performs thereunder and does not breach such agreement after the Closing Date, (C) Sigma6 is not, nor to the Knowledge of the CompanySellers and Sigma6 is any other party, none of the other parties thereto have, violated in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or except in the Ordinary Course of Business permit termination, modification, or acceleration, under the provisions written arrangement; and (D) Sigma6 has not, nor to the Knowledge of the Sellers and Sigma6 has any Material Contractother party, except in each case for those violations and defaults repudiated any provision of the written arrangement. Sigma6 is not a party to any oral contract, agreement, or other arrangement which, individually or in the aggregateif reduced to written form, would not reasonably be expected required to be listed in Section 4(m) of the Disclosure Schedule under the terms of this Section 4(m). No unfilled Customer Contract or Agreement obligating Sigma6 to perform services will result in a Company Material Adverse Effectloss to Sigma6 upon completion of performance. Except as set forth in Section 4(m) of the Disclosure Schedule, and no Acquired Corporation Sigma6 has received written notice of not been notified that any of the foregoing. The Company has made available its customers intends either to Parent dispute charges under or Parent’s Representatives in the Data Room prior to the date of this Agreement terminate early a complete and correct copy (including any material amendment, modification, extension Material Customer Contract or renewal with respect thereto) of each Material ContractAgreement.
Appears in 2 contracts
Sources: Merger Agreement (Appnet Systems Inc), Merger Agreement (Appnet Systems Inc)
Contracts. (a) Except as set forth for the Financing Agreements, the Contracts disclosed in Part 3.9 Section 3.1.18 of the Company Disclosure ScheduleLetter and the Leases and Real Property Contracts, none of the BRPI Entities is a party to or bound by:
3.1.18.1 any continuing Contract pursuant to which it is obligated to make or expects to receive payments of or related to indebtedness for borrowed money of more than $15,000,000 over the life of the Contract;
3.1.18.2 any Contract that expires or may be renewed at the option of any Person other than any BRPI Entity so as of to expire more than one year after the date of this Agreement, neither having a value, in the Company nor case of any Subsidiary such Contract, of more than $15,000,000 over the life of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant 3.1.18.3 any Contract that if terminated or modified or if it ceased to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27be in effect, 2014, would have or is could reasonably be expected to receive revenues in have a future annual period, in excess of $10,000,000BRPI Material Adverse Effect;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 273.1.18.4 any trust indenture, 2014mortgage, or is reasonably expected to make expenditures in a future annual periodpromissory note, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining loan agreement or other Contract with a labor organization for the borrowing of money, any currency exchange, interest rate, commodities or works council representing any of its employees other hedging arrangement or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding leasing transaction of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire capitalized in accordance with their terms during IFRS;
3.1.18.5 other than non-disclosure agreements entered into in the Pre-Closing Period (excludingOrdinary Course, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated any Contract limiting in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions freedom of any Material ContractBRPI Entity to engage in any line of business, except compete with any other Person, solicit any Persons for any purpose, operate its Assets at maximum production capacity or otherwise conduct its business;
3.1.18.6 any Contract made out of the Ordinary Course;
3.1.18.7 any confidentiality, secrecy or non-disclosure Contract relating to any proprietary or confidential information, in each case for those violations to the extent such Contract and defaults whichthe subject matter therein is material to the ownership, individually construction, development or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice operation of any of the foregoing. The Company has made available to Parent Businesses;
3.1.18.8 any Contract with any Person with whom any of the BRPI Entities does not deal at arm’s length within the meaning of the Tax Act (excluding agreements among one or Parent’s Representatives in more of the Data Room prior to the date BRPI Entities); or
3.1.18.9 any agreement of this Agreement a complete and correct copy (including guarantee, support, indemnification, assumption or endorsement of, or any material amendment, modification, extension or renewal similar commitment with respect theretoto, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of each more than $15,000,000 of any other Person who is not a BRPI Entity; (collectively, the “Material ContractContracts”).
Appears in 2 contracts
Sources: Combination Agreement, Combination Agreement (Brookfield Renewable Energy Partners L.P.)
Contracts. (a) Except as set forth in Part 3.9 Section 5.16 of the Company Parent Disclosure ScheduleSchedule lists, as of the date of this Agreementhereof, neither the Company nor all Contracts to which Parent or any Parent Subsidiary of the Company is a party to or is bound by which fall within any Contract:
of the following categories: (a) Contracts that (i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, involved aggregate expenditures or is reasonably expected to receive revenues in a future annual period, receipts in excess of $10,000,000;
(iii) pursuant to which 1,000,000 in the Acquired Corporations (taken as a whole) made expenditures for the aggregate in fiscal year ended September 27, 2014, 2002 or is reasonably (ii) are expected to make involve aggregate expenditures in a future annual period, or receipts in excess of $2,500,000;
1,000,000 in the aggregate in fiscal year 2003; (ivb) evidencing a joint venture, partnership and like Contracts; (c) Contracts containing covenants purporting to limit (or that would limit after the Effective Time) the freedom of Parent or any Parent Subsidiary or Affiliate to compete in any line of business or with any Person in any geographic area; (d) Contracts which contain minimum purchase conditions of greater than $1,000,000 in the aggregate in any twelve month period, all or part of which minimum purchase condition remains unsatisfied at May 31, 2003; (e) Contracts relating to any outstanding non-cancelable commitment for capital expenditure expenditures of Parent or any Parent Subsidiary in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing 1,000,000 in the aggregate in any business twelve month period; (f) indentures, mortgages, promissory notes, loan agreements, guarantees, letters of credit or geographic areaother agreements or instruments of Parent or any Parent Subsidiary with commitments for the borrowing or the lending of amounts, by Parent or any Parent Subsidiary; (g) any Contract, note or bond under which Parent or any Parent Subsidiary has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or from soliciting customers other investment in, any Person (other than Parent or employeesone of the wholly-owned Parent Subsidiaries); (h) any Contract creating or granting any Lien upon any of the properties or assets of Parent or any Parent Subsidiary; (i) any currently effective Contract, or otherwise restricting any Acquired Corporation from carrying on expired or terminated Contract which has surviving provisions, providing for indemnification of any business anywhere in the world;
(vi) Person with respect to liabilities relating to any current or evidencing Indebtednessformer business of Parent, including any guarantee of Indebtedness by the Company Parent Subsidiary or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any predecessor Person, other than sales representation(1) indemnification agreements between Parent or any Parent Subsidiary and any of their respective officers and directors that are otherwise set forth in Section 5.13 of the Parent Disclosure Schedule, distribution, licensing and similar contracts (2) any confidentiality or non-disclosure agreements or (3) any such indemnification agreements entered into in the ordinary course of business and that relate solely business; (j) any lease, sublease or similar Contract with any Person (other than Parent or a Parent Subsidiary) under which Parent or a Parent Subsidiary is a lessor or sublessor of, or makes available for use to any person (other than Parent or a Parent Subsidiary), (A) any Leased Real Property or (B) any portion of any premises otherwise occupied by Parent or a Parent Subsidiary; (k) any Contract relating to the Company’s publishing acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) which is material to Parent and do the Parent Subsidiaries, taken as a whole; (l) any Contract (other than any Permit) with any governmental authority or with any labor union; or (m) any other Contract not relate in the ordinary course of 50 business consistent with past practice that is material to Parent and the Parent Subsidiaries, taken as whole. Complete and correct copies of all Contracts referred to in this Section 5.16 of the Parent Disclosure Schedule have been made available to the Company’s book manufacturing business, Company or (D) requiring an Acquired Corporation the Company Representatives and W by Parent. All Contracts referred to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding in this Section 5.16 of the type required to be described in Section 3.9(a)Parent Disclosure Schedule are valid, whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited effect and are enforceable by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equityParent in accordance with their terms. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults whichExcept as, individually or in the aggregate, has not had and would not reasonably be expected to result in have a Company Parent Material Adverse Effect, and no Acquired Corporation none of Parent, any Parent Subsidiary nor, to the knowledge of Parent, any other party thereto, is or is alleged to be in violation of or in default in respect of, nor has received written there occurred any event or condition which (with or without notice or lapse of time or both) would constitute a violation of or default under, any such Contract. Except as set forth in Section 5.16 of the Parent Disclosure Schedule, none of the counterparties to any such Contracts has given notice of termination of, or is seeking to amend, any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material such Contract.
Appears in 2 contracts
Sources: Merger Agreement (Itc Deltacom Inc), Merger Agreement (Itc Deltacom Inc)
Contracts. (a) Except (v) for this Agreement, (w) for the Contracts filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement, (x) for the Company Plans and Company Stock Plans, (y) for any contracts that are terminable (and will continue to be terminable after the Effective Time) by the Company or any of its subsidiaries party thereto on no more than sixty (60) days’ notice without material penalty or other liability or (z) as set forth in Part 3.9 Section 3.10 of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of its subsidiaries, as of the Company date hereof, is a party to or is bound by any legally binding note, bond, mortgage, indenture, contract, agreement, lease, license, Permit or other instrument, obligation or arrangement (each, a “Contract”) that:
(i) that is required to be filed by the Company as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) 601 of Regulation S-K of under the Exchange Securities Act);
(ii) pursuant contains covenants binding upon the Company or any of its subsidiaries, in each case, that are material to which the Acquired Corporations (Company and its subsidiaries, taken as a whole, that (A) received revenues for restrict the fiscal year ended September 27ability (other than to the extent described in clause (C)(1) below) of the Company (or, 2014following the Effective Time, Parent or its subsidiaries or the Surviving Company) or any of its subsidiaries or Affiliates to engage or compete in any business or sell, supply, acquire, license or distribute any product or service, in each case, in any market or geographic area, with any Person or during any period of time, or is reasonably expected to receive revenues in a future annual periodthat would require the disposition of any material assets or line of business of the Company or its subsidiaries, or, in excess each case, after the Effective Time, Parent or its subsidiaries, (B) (1) grant “most favored nation” status to another Person and (2) pursuant to such Contract the Company or any of its subsidiaries collectively received, during the twelve (12) month period ended December 2, 2017, more than $10,000,00050,000,000 or (C) (1) include exclusive or preferred purchasing arrangements or similar provisions expressly obligating the Company or any of its subsidiaries to obtain all of its requirements for, or a minimum quantity of, certain merchandise exclusively from any vendor for merchandise resold by the Company or any of its subsidiaries, except, in each case, any purchase orders entered into in the ordinary course of business, and (2) pursuant to such Contract the Company or any of its subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000;
(iii) is a services agreement, equipment lease, logistics agreement, information technology agreement or agreement related to software (other than any architectural or construction-related Contract) in connection with which or pursuant to which the Acquired Corporations Company or any of its subsidiaries collectively paid, during the twelve (taken as a whole12) made expenditures for the fiscal year month period ended September 27December 2, 20142017, or is reasonably expected more than $50,000,000 to make expenditures in a future annual period, in excess of $2,500,000any Person;
(iv) evidencing other than with respect to any partnership or limited liability company that is wholly owned by the Company or any of its wholly-owned subsidiaries, is a capital expenditure joint venture, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any joint venture, partnership, limited liability company or other similar Person, in excess of $2,500,000each case, that is material to the Company and its subsidiaries, taken as a whole;
(v) containing a covenant prohibiting is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond or restricting any Acquired Corporation from competing other Contract relating to indebtedness for borrowed money or the deferred purchase price for property, in each case having an outstanding amount in excess of $2,500,000 individually, other than any business such Contract between or geographic area, or from soliciting customers or employees, or otherwise restricting among any Acquired Corporation from carrying on of the Company and any business anywhere in the worldof its wholly-owned subsidiaries;
(vi) relating to prohibits the payment of dividends or evidencing Indebtednessdistributions in respect of the capital stock of the Company or any of its subsidiaries, including prohibits the pledging of the capital stock of the Company or any guarantee subsidiary of Indebtedness the Company, prohibits the issuance of guarantees by the Company or any Subsidiary subsidiary of the CompanyCompany or grants any rights of first refusal or rights of first offer or similar rights or that limits or proposes to limit the ability of the Company or any of its subsidiaries or Affiliates to sell, transfer, pledge or otherwise dispose of any assets or businesses, in each case, that is material to the Company and its subsidiaries, taken as a whole;
(vii) is an agreement under which the Company or any of its subsidiaries has any obligations to make a capital contribution to, or other investment in the securities of, any Person (other than (A) to the Company or any of its wholly-owned subsidiaries, (B) extensions of credit in the ordinary course of business consistent with past practice and (C) investments in marketable securities in the ordinary course of business), in each case, that is material to the Company and its subsidiaries, taken as a whole;
(viii) is an agreement with respect to any acquisition or divestiture (other than, for the avoidance of doubt, for acquisitions or dispositions of inventory, merchandise, products, services, properties and assets in the ordinary course of business) pursuant to which the Company or any of its subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to result in payments in excess of $5,000,000;
(viiix) is between the Company or any of its subsidiaries, on the one hand, and any director or officer of the Company or any Person beneficially owning five percent (5%) or more of the outstanding Company Shares or any of their respective Affiliates, on the other hand, except for any Company Plan;
(x) contains a standstill or similar agreement that is an Inbound License will be in effect as of the Closing pursuant to which the Company or Outbound Licenseany of its subsidiaries has agreed not to acquire assets or securities of another Person;
(xi) contains a put, call or similar right pursuant to which the Company or any of its subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation case with a value in excess of $250,0005,000,000;
(viiixii) is a Company Material Real Property Lease;
(Axiii) imposing onis a Contract (including purchasing agreements, or granting togroup purchasing agreements and excluding work orders, an Acquired Corporation any future minimum take-or-pay requirements in excess statements of $100,000work, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing purchase orders and similar contracts entered into in contracts) pursuant to which the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, Company or (D) requiring an Acquired Corporation to purchase all any of its requirements of a specified good or service from subsidiaries collectively paid, during the twelve (12) month period ended December 2, 2017, more than $50,000,000 to any Person; or
(ixxiv) any collective bargaining agreement or other Contract is with a labor organization or works council representing any of its employees or any other similar Contractthe Company’s top ten (10) commercial payors (measured by prescription revenue of the Company after giving pro forma effect to the transactions contemplated by the WBA Asset Purchase Agreement during the twelve (12) month period ended on December 2, 2017) (the “Company Key Payors”).
(b) Each contract, arrangement, commitment Contract set forth or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) Section 3.10 of the Company Disclosure Schedule, Schedule or filed as an exhibit (or incorporated by reference) to the Company SEC Reports filed prior to the date of this Agreement as a “material contract” pursuant to Item 601 of Regulation S-K under the Securities Act (and to the extent so disclosed as a “material contract” under Regulation S-K in force as of the date hereof) is referred to herein as a “Company Material Contract.” Except for Each of the Company Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are is valid and binding on the applicable Acquired Corporation Company or its subsidiaries party thereto, as applicable, and, to the knowledge of the Company, each other party thereto, and is in full force and effect, subject to the Bankruptcy and Equity Exception, except (i) to the extent that any Company Material Contract expires in accordance with its terms and (ii) for such failures to be valid and binding or to be in full force and effect that have not had and would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as may has not had and would not, individually or in the aggregate, reasonably be limited expected to have a Company Material Adverse Effect, as of the date hereof, (A) the Company and its subsidiaries have in all material respects performed all obligations required to be performed by bankruptcythem under each Company Material Contract and, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none each other party to each Company Material Contract has in all material respects performed all obligations required to be performed by it under such Company Material Contract, (B) neither the Company nor any of its subsidiaries have received written notice from any other party to a Company Material Contract that such other party intends to terminate any such Company Material Contract (except in accordance with the terms thereof) and (C) there is no default under any Company Material Contract by the Company or any of its subsidiaries and, to the knowledge of the other parties thereto haveCompany, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition existshas occurred that, which with or without notice, the lapse of time or both the giving of notice or both, would constitute a material default, under default thereunder by the provisions of any Material Contract, except in each case for those violations and defaults which, individually Company or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractits subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Albertsons Companies, LLC), Merger Agreement (Rite Aid Corp)
Contracts. (a) Except as set forth in Part 3.9 Section 2.14 of the Company Disclosure ScheduleSchedule lists the following material Contracts to which any Business Subsidiary or Operating Subsidiary is a party, as of the date of this Agreement, neither the Company nor Agreement pursuant to which they have any Subsidiary rights or obligations as of the Company is date hereof (each such Contract, and each material Lease, each material Contract for Business Intellectual Property (other than licenses for off-the-shelf software, “shrink-wrap” and “clickwrap” licenses) and each material Government Contract, a party to or is bound by any “Material Contract:”):
(i) that is a “material contract” (as such term is defined each Contract for the lease of personal property from or to third parties requiring annual payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$200,000;
(ii) pursuant each Contract for the purchase of products or for the receipt of services which involves annual payments in excess of $200,000;
(iii) each Contract with any customer of the Business that accounted for more than $1,000,000 of gross sales of the Business for the year ended December 31, 2004;
(iv) each Contract with (A) any customer of the Business that accounted for more than $1,000,000 of gross sales of the Business for the year ended December 31, 2004 in which any Business Subsidiary or Operating Subsidiary has granted “most favored nation” pricing provisions and (B) to the knowledge of the Sellers (including, for this purpose only, inquiry of each country manager (or equivalent position) of each Business Subsidiary and each Operating Subsidiary), any other customer of the Business which is also a customer of the Acquired Corporations (taken as a whole) received revenues Buyer listed in the Buyer’s Annual Report on Form 10-K for the fiscal year ended September 27December 31, 2014, 2004 in which any Business Subsidiary or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000Operating Subsidiary has granted “most favored nation” pricing provisions;
(v) containing each Contract concerning the establishment or operation of a covenant prohibiting partnership, joint venture or restricting limited liability company, but excluding any Acquired Corporation from competing such Contract with an Affiliate that shall be terminated in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in accordance with the worldprovisions of Section 4.10 hereof;
(vi) relating to each Contract under which any Business Subsidiary or evidencing Operating Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (other than intercompany Indebtedness) or under which any Business Subsidiary or Operating Subsidiary has granted a Security Interest (other than in respect of intercompany Indebtedness) on any of its material assets, including tangible or intangible, other than any guarantee of Indebtedness by the Company Permitted Security Interest or any Subsidiary of the Company, in excess purchase money security interest of $5,000,000200,000 or less (or similar arrangement under foreign law);
(vii) that is an Inbound License each Contract for the disposition of any material portion of the assets or Outbound Licensebusiness of any Business Subsidiary or Operating Subsidiary (other than sales of services in the Ordinary Course of Business and the disposition of other assets no longer used in the Business in the Ordinary Course of Business) and each Contract for the acquisition of the assets or business of any other entity entered into after December 31, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,0002001;
(viii) each Contract (A) imposing onwith any customer of the Business that accounted for more than $1,000,000 of gross sales of the Business for the year ended December 31, 2004 containing a noncompetition obligation, (B) with any other customer of the Business containing a noncompetition obligation, which noncompetition obligation may not be terminated without penalty effective on a date that is within three (3) months or granting toless after notice or (C) with respect to any Business Intellectual Property containing a noncompetition obligation that would limit the right of the Buyer or any of its Affiliates or any Business Subsidiary or Operating Subsidiary to freely engage in the Business, an Acquired Corporation which noncompetition obligation may not be terminated without penalty effective on a date that is within three (3) months or less after notice;
(ix) each Contract, other than a customer Contract, concerning confidentiality, noncompetition, non-solicitation or non-hiring not entered into in the Ordinary Course of Business which is in effect on the date of this Agreement;
(x) any future minimum take-or-pay requirements employment or consulting Contract requiring annual payments by a Business Subsidiary or Operating Subsidiary in excess of $100,000 or otherwise entered into outside of the Ordinary Course of Business;
(xi) each settlement Contract, compromise Contract or release of claims entered into within one (1) year prior to the date of this Agreement with any current or former Business Employee, executive officer or director of any Business Subsidiary or Operating Subsidiary requiring a payment in excess of $100,000 to such Business Employee, executive officer or director;
(xii) each Contract which contains any provisions requiring any Business Subsidiary or Operating Subsidiary to indemnify any other party (excluding indemnities contained in such Business Subsidiary’s or Operating Subsidiary’s standard terms and conditions for services entered into in the Ordinary Course of Business, in any employment or consulting Contract entered into in the Ordinary Course of Business, and other Contracts entered into in the Ordinary Course of Business);
(xiii) each Contract with language vendors (whether individuals or entities), with a term equal to or greater than one (1) year that are not cancellable without penalty on sixty (60) days or less advance notice and require payments in excess of $100,000, ;
(Bxiv) granting “most favored nation,” “most favored customer” each other Contract (or similar status to any Person, (Cgroup of related Contracts) granting any type requiring annual payments by a Business Subsidiary or Operating Subsidiary in excess of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts $200,000 not entered into in the ordinary course Ordinary Course of business and that relate solely Business; and
(xv) each Contract not listed in items (i) through (xiv) above under which, to the Company’s publishing business and do not relate to knowledge of the Company’s book manufacturing businessSellers, or (D) requiring an Acquired Corporation to purchase all of its requirements the consequences of a specified good default or service from any Person; or
(ix) any collective bargaining agreement or other Contract with termination would reasonably be expected to have a labor organization or works council representing any of its employees or any other similar ContractBusiness Material Adverse Effect.
(b) Each contract, arrangement, commitment The Parent has made available to the Buyer a complete and accurate copy of each Contract listed in Section 2.13 or understanding Section 2.14 of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule. With respect to each Contract so listed: (i) the Contract is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire valid, binding and enforceable and in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid full force and binding on effect against the applicable Acquired Corporation Business Subsidiary or Operating Subsidiary, and, to the knowledge of the CompanySellers, against each other party thereto, except to the extent that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and to general equitable principles; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effecteffect immediately following the Closing in accordance with the terms thereof (subject to any change in control provisions set forth therein) as in effect immediately prior to the Closing except for Contracts terminated prior to the Closing in accordance with their terms; and (iii) no Business Subsidiary or Operating Subsidiary nor, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the CompanySellers, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Sellers, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by any Business Subsidiary, Operating Subsidiary or, to the knowledge of the Sellers, any other party under the provisions of such agreement, other than any Material Contractsuch breaches, except in each case for those violations and or defaults which, individually or in the aggregate, which would not reasonably be expected to result in have a Company Business Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Bowne & Co Inc), Merger Agreement (Lionbridge Technologies Inc /De/)
Contracts. (a) Except as set forth for the Contractual Obligations disclosed in Part 3.9 Section 3.17 of the Sellers’ Disclosure Schedules or those Contractual Obligations that are Excluded Assets, no Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or Related Entity is bound by any Contractor a party to:
(i) that is any Contractual Obligation (or group of related Contractual Obligations) for the purchase, sale, construction, repair or maintenance of inventory, raw materials, commodities, supplies, goods, products, equipment or other property, or for the furnishing or receipt of services, in each case, the performance of which by the Company will extend over a “material contract” period of more than one year after the Closing or which provides for (as such term is defined or would be reasonably expected to involve) annual payments to or by the Company, after the Closing, in Item 601(b)(10) excess of Regulation S-K $25,000 or aggregate payments to or by the Company in excess of the Exchange Act)$25,000;
(ii) pursuant any Contractual Obligation of the Company relating to which the Acquired Corporations acquisition or disposition by the Company of (taken as a wholeA) received revenues for any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (B) any material Asset (other than in the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess Ordinary Course of $10,000,000Business);
(iii) pursuant to which any Contractual Obligation of the Acquired Corporations (taken as Company concerning or consisting of a whole) made expenditures for the fiscal year ended September 27partnership, 2014limited liability company, joint venture or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000similar agreement;
(iv) evidencing any Contractual Obligation under which the Company has permitted any Asset to become Encumbered (other than by a capital expenditure in excess of $2,500,000Permitted Encumbrance);
(v) containing a covenant prohibiting any Contractual Obligation (A) under which the Company has created, incurred, assumed or restricting guaranteed any Acquired Corporation from competing in Debt or (B) under which any business or geographic area, or from soliciting customers or employees, or otherwise restricting other Person has guaranteed any Acquired Corporation from carrying on any business anywhere in Debt of the worldCompany;
(vi) relating any Contractual Obligation containing covenants that in any way purport to (A) restrict any business activity (including the solicitation, hiring or evidencing Indebtedness, including engagement of any guarantee Person or the solicitation of Indebtedness by any customer) of the Company or any Subsidiary Principal or (B) limit the freedom of the Company, Company or any Principal to engage in excess any line of $5,000,000business or compete with any Person;
(vii) any Contractual Obligation under which the Company is, or may become, obligated to incur any severance pay or Compensation obligations that is an Inbound License would become payable by reason of this Agreement or Outbound License, in each case, that either the Contemplated Transactions (A) grants exclusive rights without giving effect to Section 6.08 or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess the last sentence of $250,000Section 6.09);
(viii) (A) imposing onany Contractual Obligation under which the Company is, or granting tomay, have any Liability to any investment bank, broker, financial advisor, finder or other similar Person (including an Acquired Corporation obligation to pay any future minimum take-or-pay requirements in excess of $100,000legal, (B) granting “most favored nation,” “most favored customer” accounting, brokerage, finder’s, or similar status to any Person, (Cfees or expenses) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in connection with this Agreement or the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orContemplated Transactions;
(ix) any collective bargaining agreement Contractual Obligation providing for the employment of or provision of services on an independent contractor or consultancy basis by any Person on a full-time, part-time, consulting or other Contract basis or otherwise providing Compensation or other benefits to any officer, director, employee, independent contractor or consultant (other than a Company Plan) to the Company;
(x) any agency, dealer, distributor, sales representative, marketing or other similar Contractual Obligation;
(xi) any custody, transfer agent, shareholder service, administrative, accounting (other than engagement letters in connection with routine audits) and similar Contractual Obligation (other than any Client Contract);
(xii) any Contractual Obligation requiring the Company (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product (including any CLO);
(xiii) any Contractual Obligation that contains (A) a labor organization “clawback” or works council representing similar undertaking requiring the contribution, reimbursement or refund by the Company, the Principals or the Sellers of any prior distribution, return of capital or fees (whether performance based or otherwise) paid to any such Person in respect of any Client or (B) a “most favored nation” or similar provision, in each case other than any such Contractual Obligations entered into by any CLO with respect to its investments;
(xiv) any Contractual Obligation that contains (A) key person provisions pertaining to employees of the Company or (B) any of the following rights provided to an investor with respect to a Client managed, advised or sub-advised by the Company: (1) special withdrawal or redemption rights, (2) designation rights regarding advisory board or similar provisions, (3) anti-dilution rights or (4) special notice or reporting requirements imposing any material burden or expense on the Company;
(xv) any placement agent agreement, or any other Contractual Obligation for the distribution or sale of Equity Interests or Debt Interests of a CLO;
(xvi) any side letter with any Client or any investor in any CLO;
(xvii) any outstanding general or special powers of attorney executed by or on behalf of the Company;
(xviii) any Contractual Obligation, relating to the lease or license of any Asset, including Company Technology and Company Intellectual Property Rights (and including all customer license and maintenance agreements);
(xix) any Contractual Obligation under which any Company Related Entity has advanced or loaned an amount to any of its Affiliates (other than portfolio companies of the CLOs) or employees other than in the Ordinary Course of Business;
(xx) any Contractual Obligation between any Company Related Entity, on the one hand, and any Seller or any Principal (or Affiliate (other similar Contract.than the Company, the CLOs or any portfolio company of any CLO) or Family Member thereof), on the other hand, that will continue in effect after the Closing; and
(bxxi) Each contract, arrangement, commitment or understanding any other Contractual Obligation (other than those listed on Section 3.17 of the type required Sellers’ Disclosure Schedules in response to be described in Section 3.9(a), whether or not set forth in Part 3.9(aany of clause (i) of through (xx) above) that is material to the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period Related Entities (excluding, for the avoidance of doubt, early terminationany Contractual Obligations entered into by any CLO with respect to its investments), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available delivered to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a Buyer accurate and complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) copies of each Material Contractwritten Contractual Obligation listed on Section 3.17 of the Sellers’ Disclosure Schedules, in each case, as amended or otherwise modified and in effect. The Company has delivered to Buyer a written summary setting forth all of the material terms and conditions of each oral Contractual Obligation listed on Section 3.17 of the Sellers’ Disclosure Schedules.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Kohlberg Capital CORP), Purchase and Sale Agreement (Kohlberg Capital CORP)
Contracts. (a) Schedule 5.11(a) to the applicable Acquired Companies Annex sets forth a list of the following Contracts to which an Acquired Company is a party or by which the Acquired Company may be bound (the “Material Contracts”):
(i) Contracts for the future purchase, exchange or sale of electric power or ancillary services;
(ii) Contracts for the future transmission of electric power;
(iii) interconnection Contracts;
(iv) other than Contracts of the nature addressed by Section 5.11(a)(i) - (iii) and the Land Contracts, Contracts (A) for the sale of any asset or (B) that grant a right or option to purchase or sell any asset, other than in each case Contracts relating to assets with a value of less than Five Hundred Thousand Dollars ($500,000);
(v) other than Contracts of the nature addressed by Section 5.11(a)(i) - (iv) and the Land Contracts, Contracts for the future receipt of any assets or services requiring payments in excess of Five Hundred Thousand Dollars ($500,000) for each individual Contract;
(vi) Contracts that purport to limit such Acquired Company’s freedom to compete in any line of business or in any geographic area;
(vii) partnership, joint venture or limited liability company agreements;
(viii) Contracts under which it has created, incurred, assumed or guaranteed any outstanding indebtedness for borrowed money or any capitalized lease obligation, or under which it has imposed a security interest on any of its assets, tangible or intangible, which security interest secures outstanding indebtedness for borrowed money;
(ix) outstanding agreements of guaranty, surety or indemnification (excluding indemnification provisions customarily included in Contracts entered into in the Ordinary Course of Business), direct or indirect, by such Acquired Company;
(x) Contracts for employment, management or consulting services providing annual compensation in excess of Two Hundred Fifty Thousand Dollars ($250,000) and which are not cancelable by such Acquired Company on notice (and without penalty) of ninety (90) days or less;
(xi) all Contracts with respect to the purchase, issuance, transfer or Encumbrance of the membership interests of the Acquired Companies; and
(xii) all Contracts with Seller or any Affiliate of Seller, on the one hand, and any Acquired Company, on the other hand.
(b) Except as set forth in Part 3.9 of on Schedule 5.11(b) to the Company Disclosure Scheduleapplicable Acquired Companies Annex, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014Seller has provided Purchaser with, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting access to, an Acquired Corporation any future minimum take-or-pay requirements in excess copies of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar ContractMaterial Contracts.
(bc) Each contractExcept as set forth on Schedule 5.11(c) to the applicable Acquired Companies Annex, arrangement, commitment or understanding each of the type required Material Contracts, in all material respects, is in full force and effect and constitutes a valid and binding obligation of the Acquired Company party thereto and, to be described in Section 3.9(a)Seller’s Knowledge, whether or not of the other parties thereto.
(d) Except as set forth on Schedule 5.11(d) to the applicable Acquired Companies Annex, no Acquired Company is in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “breach or default in any material respect under any Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubtand to Seller’s Knowledge, early termination), all no other party to any of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated breach or default in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractthereunder.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (NextEra Energy Partners, LP)
Contracts. (a) Except as set forth in Part 3.9 Section 2.13 of the Company Disclosure Schedule, as of Schedule lists the date of this Agreement, neither following written arrangements (including without limitation written agreements) to which the Company nor or any Subsidiary of the Company is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$50,000 per annum;
(ii) pursuant to any written arrangement (or group of related written arrangements), currently in force or effect or which by its terms may in the Acquired Corporations (taken as a whole) received revenues future be in force or effect, for the fiscal year ended September 27licensing or distribution of software, 2014, products or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures other personal property or for the fiscal year ended September 27, 2014, furnishing or is reasonably expected to make expenditures in a future annual period, in excess receipt of $2,500,000;
services (ivi) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness which calls for performance by the Company or any Subsidiary (other than the performance solely of indemnification obligations) over a period of more than one year following the Companydate hereof, in excess (ii) which involves the payment or receipt of more than the sum of $5,000,000100,000 following the date hereof, or (iii) in which the Company or any Subsidiary has granted rights to license, sublicense or copy, "most favored nation" pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(viiiii) that is an Inbound License any written arrangement establishing a partnership or Outbound Licensejoint venture;
(iv) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any written arrangement concerning confidentiality, non- solicitation or non-competition (other than the Company's standard form of confidentiality, nonsolicitation and non-competition agreement with its employees, a copy of which has been provided to the Buyer or its advisors, and the nondisclosure agreements entered into among any of the Parties in each caseconnection with the transactions contemplated by this Agreement);
(vi) any written arrangement involving any of the Company Stockholders or their Affiliates (for the purposes of this Agreement, that either "Affiliate" shall mean (A) grants exclusive rights to in the case of an individual, the members of the immediate family (including parents, siblings and children) of (i) the individual and (ii) the individual's spouse, and (iii) any Business Entity that directly or from an Acquired Corporation indirectly, through one or more intermediaries controls, or is controlled by, or is under common control with any of the foregoing individuals, or (B) requires aggregate payments to in the case of a Business Entity, another Business Entity or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing ona person that directly or indirectly, through one or more intermediaries controls, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing businessis controlled by, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract is under common control with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(aBusiness Entity), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.;
Appears in 2 contracts
Sources: Stock Purchase Agreement (Security Dynamics Technologies Inc /De/), Stock Purchase Agreement (Security Dynamics Technologies Inc /De/)
Contracts. (a) Except as set Schedule 3.15(a) sets forth in Part 3.9 a complete list of each of the following contracts to which any Acquired Company Disclosure Schedule, is a party or by which any of them is bound as of the date of this AgreementAgreement (collectively, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:“Material Contracts”):
(i) any option, purchase and sale contract or lease (whether real or personal property) providing for annual payments of $150,000 or more or that is a “material contract” cannot be terminated on not more than thirty (as such term is defined in Item 601(b)(1030) days’ notice without payment by any Acquired Company of Regulation S-K of the Exchange Act)any penalty;
(ii) pursuant to which contracts involving the annual expenditure by any Acquired Company of more than $150,000 in any instance for the purchase of materials, goods, supplies, equipment or services, excluding any such contracts that are terminable by the Acquired Corporations Companies without penalty on not more than thirty (taken as a whole30) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000days’ notice;
(iii) pursuant contracts providing for payments to which any Acquired Company of more than $150,000 in any instance for the sale of natural gas, materials, goods, supplies, equipment or services, excluding any such contracts that are terminable by the Acquired Corporations Companies without penalty on not more than thirty (taken as a whole30) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000days’ notice;
(iv) evidencing a capital contracts involving the annual expenditure in excess by any Acquired Company of more than $2,500,000150,000 for the purchase, sale, transportation or storage of coal;
(v) containing a covenant prohibiting any agreement relating to Indebtedness for borrowed money or restricting the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset), including indentures, mortgages, loan agreements, security agreements, or other agreements for the incurrence of debt, other than (A) trade accounts payable incurred in the Ordinary Course of Business and (B) any such agreement relating to indebtedness owed to Sellers or any of their Affiliates to be repaid on or before the Closing Date or owed to any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldCompany;
(vi) relating to partnership, limited liability company, joint venture agreements or evidencing Indebtedness, including other agreements involving a sharing of profits or expenses by any guarantee of Indebtedness by the Company or any Subsidiary of the Acquired Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either any agreement under which (A) grants exclusive rights to any Person (including any Seller) has directly or from an indirectly guaranteed any liabilities or obligations of any Acquired Corporation Company (other than any such guarantee by any other Acquired Company) or (B) requires aggregate payments to any Acquired Company has, directly or from an indirectly, guaranteed any liabilities or obligations of any other Person (including any Seller but excluding any other Acquired Corporation in excess of $250,000Company);
(viii) (A) imposing on, any agreement prohibiting or granting to, an limiting the ability of any Acquired Corporation Company to engage in any future minimum take-or-pay requirements in excess business activity or compete with any Person or prohibiting or limiting the ability of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status any Person to compete with any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Acquired Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or;
(ix) any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise), including any contract under which any Acquired Company will have Liabilities after the date of this Agreement relating to the acquisition or sale of any business enterprise;
(x) distributor, dealer, sales agency, marketing or similar contracts under which any Acquired Company is obligated to pay after the date of this Agreement an amount in excess of $100,000 during any calendar year;
(xi) any other contract providing that any Acquired Company will receive future payments aggregating more than $100,000 per annum or $500,000 in the aggregate prior the expiration of such contract;
(xii) any contract with any current or former officer, director or employee of any Acquired Company or any of the Sellers involving annual consideration or payments in excess of $150,000, including offer letters with respect to employment scheduled to begin after the date hereof;
(xiii) any consulting or similar agreement with an independent contractor providing for (A) annual payments by any Acquired Company in excess of $100,000 or (B) aggregate payments by any Acquired Company of $250,000, excluding any such contracts that are terminable by the Acquired Companies without penalty on not more than thirty (30) days notice;
(xiv) any outstanding power-of-attorney empowering any Person not a current employee of any Acquired Company to act on behalf of any Acquired Company;
(xv) any employee collective bargaining agreement with any labor union or other Contract with a labor organization employees covering former, current or works council representing future employees of any Acquired Company or work done, being done or to be done in the future by any Acquired Company;
(xvi) any contract mining agreement; and
(xvii) any material agreement, commitment, arrangement or plan not made in the Ordinary Course of its employees or any other similar ContractBusiness.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, Material Contract is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable agreement of each Acquired Corporation Company which is a party thereto and, to the knowledge Knowledge of IRP GP and Resource Partners, each of the Companyother parties thereto, enforceable by or against such Acquired Company and, to the Knowledge of IRP GP and Resource Partners, each of such other party thereto, and parties thereto in full force and effectaccordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar applicable law Laws relating to or affecting creditors’ rights generally and by general equitable principles (whether considered in a proceeding in equity or at law). Resource Partners has heretofore delivered to Buyer true and complete copies of equityall such written Material Contracts. No Acquired Corporation has, and to the knowledge of the CompanyExcept as set forth in Schedule 3.15(b), none of the rights of the Acquired Companies under the Material Contracts have been assigned (including by an absolute assignment of rents or contracts) or collaterally assigned, assigned for the purpose of granting security, or are affected by any security interest or similar encumbrance. Except as set forth in Schedule 3.6, none of the Material Contracts require consent to consummate the Contemplated Transactions, whether by operation of law or otherwise.
(c) Except as set forth on Schedule 3.15(c), (i) the applicable Acquired Company is, and at all times has been, in compliance in all material respects with all applicable terms and requirements of each Material Contract, (ii) to the Knowledge of IRP GP and Resource Partners, each other parties thereto havePerson that has had any obligation or Liability under any Material Contract is, violated and at all times has been, in any material respect any provision compliance with all applicable terms and requirements of such Material Contract, (iii) to the Knowledge of IRP GP and Resource Partners no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or committed give the Acquired Companies, or failed any other Person the right to perform declare a default or exercise any actremedy under, and no event or condition existsto accelerate the maturity or performance of, which with or without noticeto cancel, lapse of time terminate, or both would constitute a material defaultmodify, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and (iv) no Acquired Corporation Company has been given or received from any Person at any time since January 1, 2009, any written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior other written communication or, to the date Knowledge of this Agreement a complete IRP GP and correct copy (including Resource Partners, oral notice or other oral communication regarding any material amendmentactual, modificationalleged, extension possible, or renewal with respect thereto) of each potential violation or breach of, or default under, any Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Tortoise Capital Resources Corp), Purchase Agreement (James River Coal CO)
Contracts. (a) Except as set forth in Part 3.9 Section 4.10(a) of the Company Disclosure Schedule, as Schedules contains an accurate and complete list of the date of this Agreement, neither the Company nor any Subsidiary of the following Contracts to which each Company is a party or by which any of its properties, rights or assets are bound (collectively, the “Material Contracts”) and the Companies have either delivered to Buyer or is bound made available for review by any ContractBuyer, a true, accurate and complete copy of each such Material Contract which is:
(i) any Contract that is a “material contract” or is reasonably likely to require expenditures (as such term is defined including capital expenditures) or payments to or from either Company in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$25,000 in any calendar year;
(ii) pursuant any Contract under which either Company is obligated to which the Acquired Corporations (taken sell or lease as a whole) received revenues for the fiscal year ended September 27, 2014, lessor real or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000personal property;
(iii) pursuant any Contract that contains a covenant not to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27compete applicable to either Company, 2014binds either Company to any exclusive business arrangements or licenses or contains any requirements, output or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000“take-or-pay” obligations;
(iv) evidencing any Contract granting a capital expenditure customer of either Company “most favored nation” or similar terms (whether in excess respect of $2,500,000pricing or otherwise);
(v) containing a covenant prohibiting any distributor, consultant, representative or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldbroker Contract;
(vi) relating to any joint venture, partnership or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000teaming Contract;
(vii) that is an Inbound License or Outbound License, in each case, that any Contract under which either Company has (A) grants exclusive rights to created, incurred, assumed or from an Acquired Corporation guaranteed (or may create, incur, assume or guarantee) Indebtedness, (B) requires aggregate payments granted a Lien on its assets, whether tangible or intangible, to secure Indebtedness or from an Acquired Corporation in excess of $250,000(C) extended credit to any Person;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements Contract under which either Company has assumed a capitalized lease obligation in excess of $100,00025,000;
(ix) any Contract with any Affiliate and any Contract between Seller and any Related Person;
(x) any collective bargaining, labor, professional employer organization or similar Contract;
(xi) any Contract related to any Company-owned or Company-licensed Intellectual Property (other than unmodified, commercially available, off-the-shelf, nonexclusive software licenses with an aggregate value of less than $10,000);
(xii) any Contract with a Governmental Entity (whether as prime contractor, subcontractor or otherwise), including any performance bonds or similar arrangements related thereto;
(xiii) any stock purchase, asset purchase or other acquisition or divestiture agreement relating to the acquisition, lease, license or disposition by either Company of assets (other than in the ordinary course of business), properties, rights or any Equity Interests of any Person (A) providing for any indemnification, guaranty or surety obligation of the Company or (B) granting “most favored nation,” “most favored customer” or similar status to with a fair market value in excess of $25,000;
(xiv) any Person, Contract (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts purchase orders entered into in the ordinary course of business business) with the 20 largest customers and that relate solely 20 largest suppliers of either Company for partial fiscal year ended April 19, 2017;
(xv) any Contract for the purchase or sale of raw materials, commodities, supplies, products, or other person property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one (1) year;
(xvi) any written Contract containing indemnification obligations or caps on damages;
(xvii) any stockholders’ or similar Contract, or any Contract relating to the Company’s publishing business establishment, management or control of any joint venture or strategic alliance;
(xviii) any Contract between either Company and do not relate any other individual for the employment of such individual on a full-time, part-time, consulting or other basis providing annual compensation;
(xix) any Contract (A) the termination of which would reasonably be expected to cause material losses to either Company or (B) that is material to the ongoing Business of either Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orand
(ixxx) any collective bargaining agreement or other Contract with a labor organization or works council representing any the performance of its employees or any other similar Contractwhich involves consideration in excess of $25,000.
(b) Each contractMaterial Contract is in full force and effect and is the legal, arrangementvalid and binding obligation of each Company, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the and is enforceable against such Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingits terms, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge Knowledge of Seller, is the Companylegal, each other party thereto, valid and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none binding obligation of the other parties thereto have(the “Other Parties”), violated in and neither either Company nor, to the Knowledge of Seller, any material respect of the Other Parties to any provision ofMaterial Contract is, or committed is alleged to be, in breach, violation or failed default of such Contract, and, to perform any actthe Knowledge of Seller, and no event has occurred that with notice or condition exists, which with or without notice, lapse of time or both would constitute a material defaultbreach, violation or default by any such party, or permit termination, modification or acceleration by the Other Parties, under the provisions of such Material Contract.
(c) Neither Company has waived any right it may have under any Material Contract, except in each case for those violations and defaults which, individually . No party has provided any written or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written oral notice of any of the foregoing. The Company has made available intention to Parent terminate, modify or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including accelerate any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Rescission and Mutual Release Agreement (Life Clips, Inc.), Stock Purchase Agreement (Life Clips, Inc.)
Contracts. (a) Except as set forth in Part 3.9 of the Company Disclosure Schedule, as As of the date of this Agreement, except as set forth as an exhibit to the Parent SEC Documents and on Section 4.11(a) of the Parent Disclosure Letter, neither the Company Parent nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractany:
(i) Contracts relating to Indebtedness for borrowed money or any guarantee of any Indebtedness for borrowed money (other than in respect of Indebtedness for borrowed money of a wholly-owned Subsidiary of Parent) in excess of $4,000,000;
(ii) Non-competition agreements or any other agreements or arrangements that is materially limit or otherwise materially restrict Parent or any of its Subsidiaries or any of their respective Affiliates or any successor thereto or that, to Parent’s Knowledge, would, after the Effective Time, limit or restrict Parent or any of its Subsidiaries (including the Surviving Corporation) or any successor thereto, in each case from engaging or competing in any line of business or in any geographic area, which agreement or arrangements would reasonably be expected to materially limit, materially restrict or materially conflict with the business of Parent and its Subsidiaries, taken as a “material contract” whole (including for purposes of such determination, the Surviving Corporation and its Subsidiaries), after giving effect to the Merger;
(iii) Contracts required to be filed as such term is defined in an exhibit to Parent’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of under the Exchange Securities Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure Contracts, including Parent Oil and Gas Agreements, where Parent or any of its Subsidiaries has received or expects to receive $4,000,000 or more in excess of $2,500,000revenues pursuant to such agreements in the current fiscal year;
(v) containing Contracts with respect to the receipt of any goods and services involving a covenant prohibiting payment of $4,000,000 or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere more in the worldcurrent fiscal year;
(vi) Joint venture, alliance, partnership or limited liability company agreements or similar Contracts relating to the formation, creation, operation, management or evidencing Indebtednesscontrol of any joint venture, including any guarantee of Indebtedness by the Company alliance, partnership or limited liability company that (A) is material to Parent, its Subsidiaries or any Subsidiary of the CompanyOil and Gas Properties of Parent or any of its Subsidiaries; (B) is material to any investment in, or other commitment to, any Related Entity of Parent; or (C) would reasonably be expected to require Parent or its Subsidiaries to make expenditures in excess of $5,000,000;4,000,000 or more per annum; or
(vii) Contracts that would prevent, materially delay or materially impede the consummation of the transactions contemplated by this Agreement.
(b) All Contracts to which Parent or any of its Subsidiaries is an Inbound License a party to or Outbound Licensebound by as of the date of this Agreement that are either (i) of the type described in clause (a) above or (ii) material Parent Oil and Gas Agreements relating to Oil and Gas Properties of Parent and its Subsidiaries are referred to herein as the “Parent Material Contracts.” Except, in each case, that either (A) grants exclusive rights as has not, and would not reasonably be expected to have, individually or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing onthe aggregate, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000a Parent Material Adverse Effect, (Bi) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Parent Material Contracts are valid and binding on Parent and/or the applicable Acquired Corporation relevant Subsidiary of Parent that is a party thereto and, to the knowledge of the CompanyParent’s Knowledge, each other party thereto, subject to the Bankruptcy and Equity Exception, (ii) all Parent Material Contracts are in full force and effect, except as may (iii) Parent and each of its Subsidiaries has performed all material obligations required to be limited performed by bankruptcythem under the Parent Material Contracts to which they are parties, insolvency(iv) to Parent’s Knowledge, moratorium each other party to a Parent Material Contract has performed all material obligations required to be performed by it under such Parent Material Contract and (v) no party to any Parent Material Contract has given Parent or any of its Subsidiaries written notice of its intention to cancel, terminate, change the scope of rights under or fail to renew any Parent Material Contract and neither Parent nor any of its Subsidiaries, nor, to Parent’s Knowledge, any other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasparty to any Parent Material Contract, and to the knowledge of the Company, none of the other parties thereto have, violated has repudiated in writing any material respect provision thereof. Neither Parent nor any provision of its Subsidiaries has Knowledge of, or committed has received written notice of, any violation of or failed to perform default under (or any act, and no event or condition exists, which with or without notice, lapse the passage of time or both the giving of notice would constitute cause such a violation of or default under or permit termination, modification or acceleration under) any Parent Material Contract or any other Contract to which Parent or any of its Subsidiaries is a party or by which Parent, any of its Subsidiaries or any of their respective material default, under the provisions of any Material Contractproperties or assets is bound, except in each case for those violations and or defaults whichthat are not, individually or in the aggregate, would not reasonably be expected likely to result in a Company Parent Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Contracts. (aSection 4(o) Except as set forth in Part 3.9 of the Disclosure Schedule lists the following contracts and other agreements, whether written or oral, to which any of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company or its Subsidiaries is a party to or is otherwise bound (except those agreements contemplated by any Contract:this Agreement or in connection with the restructuring in connection therewith):
(i) that is a “material contract” any agreement (as such term is defined in Item 601(b)(10or group of related agreements) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess lease of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights personal property to or from an Acquired Corporation any Person providing for lease payments which extend over a period of more than 180 days or (B) requires aggregate payments to or from an Acquired Corporation include consideration in excess of $250,000;
(viiiii) any agreement (Aor group of related agreements) imposing onfor the purchase or sale of raw materials, commodities, supplies, products, or granting toother personal property, an Acquired Corporation any future minimum take-or-pay requirements or for the furnishing or receipt of services, the performance of which will extend over a period of more than 180 days or involve consideration in excess of $100,000250,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(Bv) granting “most favored nation,” “most favored customer” any material agreement imposing confidentiality obligations on the Company or similar status to its Subsidiaries;
(vi) any Person, contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world;
(Cvii) granting any type of exclusive rights to any Person, agreement with the Company and its Affiliates (other than sales representationthe Company and its Subsidiaries);
(viii) any profit sharing, distributionstock option, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing businessstock purchase, stock appreciation, deferred compensation, severance, or (D) requiring an Acquired Corporation to purchase all other plan or arrangement for the benefit of its requirements of a specified good current or service from any Person; orformer directors, officers, and employees;
(ix) any collective bargaining agreement;
(x) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing material severance benefits;
(xi) any contract, agreement or other Contract arrangement with a labor organization any officer or works council representing director of the Company or any of its employees Subsidiaries;
(xii) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees;
(xiii) any agreement under which the consequences of a default or termination could have a material adverse effect on the business, financial condition, operations or results of operations of the Company or its Subsidiaries; or
(xiv) any other similar Contract.
agreement (bor group of related agreements) Each contract, arrangement, commitment or understanding the performance of which involves consideration in excess of $250,000. The Company has delivered to the type required to be described Buyer a correct and complete copy of each written agreement (as amended) listed in Section 3.9(a), whether or not set forth in Part 3.9(a4(o) of the Company Disclosure Schedule and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 4(o) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period valid, binding, enforceable (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as enforceability may be limited by bankruptcy, insolvency, moratorium and or other similar applicable law laws affecting or relating to creditors’ ' rights generally generally, and by general principles equitable principles) and in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable (except as enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors' rights generally, and by general equitable principles), and in full force and effect on identical terms following the consummation of equity. No Acquired Corporation hasthe transactions contemplated hereby, (C) the Company is not, and to the knowledge Knowledge of the Company, none of the no other parties thereto have, violated party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material breach or default, or permit termination, modification, or acceleration, under the provisions of any Material Contract, except in each case for those violations agreement; and defaults which, individually or in (D) the aggregate, would not reasonably be expected to result in a Company Material Adverse Effecthas not, and no Acquired Corporation has received written notice of any to the Knowledge of the foregoing. The Company Company, no other party has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including repudiated any material amendment, modification, extension or renewal with respect thereto) provision of each Material Contractthe agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Northland Cranberries Inc /Wi/), Stock Purchase Agreement (Sun Capital Partners Ii Lp)
Contracts. (a) Except as set forth in Part 3.9 of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10Schedule 3(o)(i) of Regulation S-K of the Exchange Act);hereto lists each Acquired Contract.
(ii) pursuant In addition, the Disclosure Schedule lists the following contracts and other agreements to which BDE is a party:
(A) any agreement (or group of related agreements) relating to the Acquired Corporations (taken as a whole) received revenues Business for the fiscal year ended September 27, 2014lease of personal property to or from any Person providing for lease payments in excess of $10,000 per annum;
(B) any agreement (or group of related agreements) relating to the Business for the purchase or sale of personal property, or is reasonably expected to receive revenues for the furnishing or receipt of services, the performance of which will extend over a period of more than 1 year, result in a future annual periodmaterial loss to BDE, or involve consideration in excess of $10,000;
(C) any agreement concerning a partnership or joint venture relating to the Business;
(D) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000,00010,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(E) any agreement concerning confidentiality or non-competition relating to the Business;
(F) any agreement involving any BDE stockholder and their Affiliates (other than BDE) relating to the Business; or
(G) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Business or the Acquired Assets.
(iii) pursuant BDE has delivered to which the Atrinsic a correct and complete copy of each Acquired Corporations Contract (taken as amended to date) listed on Schedule 3(o)(i) hereto. Each Acquired Contract is a whole) made expenditures for the fiscal year ended September 27valid, 2014, or is reasonably expected to make expenditures in a future annual period, in excess binding and enforceable obligation of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation BDE and, to the knowledge Knowledge of BDE, the Company, each other party or parties thereto, and each Acquired Contract is in full force and effect. Neither BDE, except as nor, to the Knowledge of BDE, any other party thereto, is in default under any Acquired Contract by which the Acquired Assets or the Business may be limited by bankruptcybound or affected or under which such assets, insolvencybusiness or operations receive benefits, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasand, and to the knowledge Knowledge of BDE, there has not occurred any event that with the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or the giving of notice or both would constitute a material default, under the provisions such an event of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractdefault thereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Atrinsic, Inc.), Asset Purchase Agreement (Brilliant Digital Entertainment Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 2.15 of the Company Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Company or any Subsidiary is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $10,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than three months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $10,000, or (C) in which the Acquired Corporations (taken as Company has granted “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27any dealer, 2014joint marketing or development contract or agreement, or is reasonably expected to make expenditures in a future annual periodany sales representative, in excess of $2,500,000remarketer or referrer or similar agreement;
(iv) evidencing any agreement concerning the establishment or operation of a capital expenditure in excess of $2,500,000partnership, joint venture or limited liability company;
(v) containing any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $10,000 or under which it has imposed (or may impose) a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying Security Interest on any business anywhere in the worldof its assets, tangible or intangible;
(vi) relating any agreement for the disposition of any significant portion of the assets or business of the Company (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vii) any agreement concerning confidentiality (other than standard non-disclosure agreements entered into in the Ordinary Course of Business);
(viii) any employment or consulting agreement;
(ix) any agreement involving any current or former officer, director, manager or equityholder of the Company or an Affiliate thereof;
(x) any agreement under which the consequences of a default or termination would reasonably be expected to or evidencing Indebtedness, including have a Company Material Adverse Effect;
(xi) any guarantee of Indebtedness by agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(xii) any agreement that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company, in excess ▇▇▇▇.▇▇▇ or any of $5,000,000its subsidiaries as currently conducted and as currently proposed to be conducted;
(viixiii) that any agreement under which the Company is an Inbound License restricted from selling, licensing or Outbound Licenseotherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in each caseany geographic area, that either (A) grants exclusive rights to during any period of time or from an Acquired Corporation any segment of the market or (B) requires aggregate payments to or from an Acquired Corporation in excess line of $250,000business;
(viiixiv) any agreement which would entitle any third party to receive a license or any other right to intellectual property of ▇▇▇▇.▇▇▇ or any of ▇▇▇▇.▇▇▇’s Affiliates following the Closing; and
(Axv) imposing on, any other agreement (or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess group of related agreements) either involving more than $100,000, (B) granting “most favored nation,” “most favored customer” 100,000 or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts not entered into in the ordinary course Ordinary Course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar ContractBusiness.
(b) Each contract, arrangement, commitment or understanding The Company has delivered to ▇▇▇▇.▇▇▇ a complete and accurate copy of the type required to be described each agreement listed in Section 3.9(a), whether 2.13 or not set forth in Part 3.9(a) Section 2.15 of the Company Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubt, early termination), all of the Material Contracts are valid binding and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, enforceable and in full force and effect; (ii) the agreement will continue to be legal, except valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and in effect immediately prior to the knowledge Closing; and (iii) neither the Company nor, to the Knowledge of the CompanyCompany and the Equityholders, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the Knowledge of the Company and the Equityholders, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any Knowledge of the foregoing. The Company has made available to Parent or Parent’s Representatives in and the Data Room prior to the date of this Agreement a complete and correct copy (including Equityholders, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such agreement.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Care.com Inc), Equity Purchase Agreement (Care.com Inc)
Contracts. Schedule 4.12 lists the following contracts and other agreements to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound:
(a) Except as set forth any agreement (or group of related agreements) for the lease of personal property to or from any Person;
(b) any agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration or performance having a value in Part 3.9 excess of £5,000;
(c) any agreements and licenses in respect of Intellectual Property;
(d) any partnership, joint venture, operating or similar agreement;
(e) any agreement (or group of related agreements) under which the Company or any Subsidiary has created, incurred, assumed or guaranteed any indebtedness or any capitalized lease obligation or under which a Lien has been imposed on any of the Company’s or its Subsidiaries’ assets;
(f) any confidentiality or noncompetition agreement or any other agreement that limits the freedom of the Company Disclosure Scheduleor any Subsidiary (i) to compete in any line of business with any Person or in any area or (ii) to own, as operate, sell, transfer, pledge or otherwise dispose of the date or encumber any of this Agreement, neither its assets;
(g) any agreement under which the Company nor or any Subsidiary has advanced or loaned any amount of money to a Seller or any Shareholder, officer or employee of the Company is a party to or is bound by any Contract:Subsidiary;
(h) any other agreement (or group of related agreements) (i) material to the Business of the Company and its Subsidiaries that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness not cancelable by the Company or any Subsidiary on notice of not longer than thirty (30)-days without liability, penalty or premium of any kind, except liability that arises as a matter of Law upon termination of employment, or (ii) any agreement or arrangement providing for the Company, in excess payment of $5,000,000any bonus or commission based on sales or earnings;
(viii) that is an Inbound License any agreement (or Outbound License, in each case, that either (Agroup of related agreements) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in under which the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements consequences of a specified good default or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both termination would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice ;
(j) any agreement for which the Company or any Subsidiary is obligated to obtain the consent of any other party thereto upon consummation of the foregoingtransactions contemplated by this Agreement;
(k) any contract, agreement or other arrangement entitling any Person to any severance or other benefits upon a change of control of the Company; and
(l) any other agreement that is material to the Business or the Company’s operations. The Company has made available to Parent Buyer a true, correct and complete copy of each written agreement listed on Schedule 4.12 (as amended to date) and a brief written summary setting forth the terms and conditions of any oral agreement referred to on Schedule 4.12. With respect to each such agreement: (i) the agreement is legal, valid, binding and enforceable against the Company or Parentits Subsidiaries, as applicable, in accordance with its terms and, to the Company’s Representatives Knowledge, each other party thereto and will continue to be so on identical terms immediately after giving effect to the consummation of the transactions contemplated hereby; (ii) neither the Company nor any Subsidiary is in material breach or default and, to the Data Room Company’s Knowledge, no other party is in material breach or default; and (iii) to the Company’s Knowledge, no party has repudiated any provision of the agreement. MEM Consumer Finance Limited has complied in all material respects with the terms and conditions of the agreement for an overdraft facility with the Bank of Scotland dated 16 March 2006, including, but not limited to, the pre-conditions to be met prior to utilisation of such facility and the date ongoing obligations of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractsuch facility.
Appears in 2 contracts
Sources: Share Purchase Agreement (Purpose Financial Holdings, Inc.), Share Purchase Agreement (Purpose Financial Holdings, Inc.)
Contracts. Schedule 4.12 sets forth a true, correct and complete list of the following written contracts, agreements, leases, commitments and other instruments to which a Seller is, or is performing obligations as though it were, a party (other than the Employment Agreements set forth on Schedule 4.14 and the Seller Benefit Plans set forth on Schedule 4.15), in each case only to the extent related to, in connection with or otherwise affecting the Assets, the Business or the ownership or operation of the Assets or the Business but only to the extent they will become Assumed Contracts:
(a) Except as set forth in Part 3.9 each lease or license involving any Assets (whether real, personal or mixed, tangible or intangible) involving an annual commitment or payment of more than $2,500,000 individually by any of the Company Disclosure Schedule, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company Sellers;
(b) all contracts and agreements to which a Seller is a party to that limit or is bound by restrict any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)Sellers or any Key Business Employees of any of the Sellers from engaging in any business in any jurisdiction;
(iic) pursuant to which all contracts and agreements for capital expenditures or the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, acquisition or is reasonably expected to receive revenues in a future annual periodconstruction of fixed assets, in excess each case requiring the payment by any of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for Sellers after the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, date hereof of an amount in excess of $2,500,000;
(ivd) evidencing all contracts that provide for an increased payment or benefit, or accelerated vesting, upon the execution hereof or the Closing or in connection with the transactions contemplated hereby;
(e) all contracts and agreements granting any Person a capital expenditure Lien (other than a Permitted Lien) on all or any part of the Assets;
(f) all contracts and agreements for the cleanup, abatement or other actions in connection with any Hazardous Materials, the remediation of any existing environmental condition or relating to the performance of any environmental audit or study;
(g) all contracts and agreements granting to any Person an option or a first refusal, first-offer or similar preferential right to purchase or acquire any of the Assets;
(h) all contracts and agreements with any agent, distributor or representative that is not terminable without penalty on 90 days’ or fewer notice;
(i) all contracts and agreements for the granting or receiving of a license, sublicense or franchise under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment in excess of $2,500,000100,000 annually;
(vj) containing a covenant prohibiting all joint venture or restricting partnership contracts and all other contracts providing for the sharing of any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in profits (but excluding the worldlimited partnership agreement of Huntsman Fuels);
(vik) relating to all customer and supplier contracts, not terminable without penalty on 90 days’ or evidencing Indebtedness, including any guarantee of Indebtedness fewer notice either by the Company Seller party thereto or any Subsidiary the applicable customer or supplier, for the provision of the Company, goods or services with a value in excess of $5,000,0002,500,000 in any year during the two-year period ended December 31, 2005 by any of the Sellers;
(viil) all outstanding powers of attorney empowering any Person to act on behalf of any of the Sellers that would be binding on the Purchaser as a result of the closing of the transactions under this Agreement;
(m) the software license agreements set forth on Schedule 4.12(m) (“Transferred Software License Agreements”); and
(n) all existing contracts, agreements, arrangements and commitments (other than those described in subsections (a) through (m) of this Section 4.12) to which any of the Sellers is a party or by which the Assets are bound (i) involving an annual commitment or annual payment to or from such Seller of more than $2,500,000 individually or (ii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely material to the Company’s publishing business Business, individually. True, correct and do not relate complete copies of the Assumed Contracts described above in this Section 4.12 have been made available to the Company’s book manufacturing businessPurchaser or its representatives or agents. Subject to the following paragraph, or (D) requiring an Acquired Corporation to purchase the Assumed Contracts are legal, valid, binding and enforceable in all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire material respects in accordance with their respective terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, with respect to the knowledge of the Company, each other Sellers that are a party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasto such Assumed Contracts, and to the knowledge Sellers’ Knowledge with respect to each other Person party thereto, subject in each case to applicable bankruptcy, insolvency and other similar Laws affecting the enforceability of creditors’ rights generally, general equitable principles and the discretion of courts granting equitable remedies. There is no existing material default or breach by any of the Company, none of the other parties thereto have, violated in Sellers under any material respect any provision of, Assumed Contract (or committed or failed to perform any act, and no event or condition existsthat, which with notice or without notice, lapse of time or both would could constitute a material defaultdefault or breach), under and to the provisions Sellers’ Knowledge, there is no such material default (or event or condition that, with notice or lapse of time or both, could constitute a material default or breach) with respect to any third party to any such Assumed Contract. As of the date hereof, no party to any Assumed Contract is (x) repudiating any provision thereof, (y) failing to perform its obligations thereunder claiming force majeure or other right to suspend performance or (z) claiming any right to offset, discount or otherwise aba▇▇; ▇n each case, in respect of any Material Contractmaterial amount or performance obligation owing thereunder, except in each case for those violations and defaults whichexcept, individually or in the aggregatecase of clause (z), would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any only as expressly permitted by the applicable contract. None of the foregoingrights of either Seller in the Assumed Contracts is subject to a Lien other than a Permitted Lien. Schedule 4.12 identifies with an asterisk each Assumed Contract set forth therein that requires the consent of or notice to the other party thereto to avoid any breach, default or violation of such contract, agreement or other instrument in connection with the transactions contemplated hereby, including the assignment of such Assumed Contract to the Purchaser. The Company representations and warranties in this Section 4.12 in respect of MTBE Contracts are given only as of the date hereof. Certain of the Assumed Contracts may not in fact have been executed on behalf of a Seller and/or other Person party (or intended to be party) thereto or may have expired or be beyond their term. The Purchaser accepts the risk that if in fact any such contract was not fully executed or has made available expired or is beyond its term, it may not be enforceable by the Sellers (or after the Closing, the Purchaser), against any other party thereto. Subject to Parent or Parent’s Representatives the preceding sentence, all representations and warranties of the Sellers in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal paragraph immediately above shall apply with respect thereto) of to each Material Contractsuch contract as if it had been fully and validly executed, or was within its stated term, as applicable.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Texas Petrochemicals Inc.), Asset Purchase Agreement (Texas Petrochemicals Inc.)
Contracts. (a) Except as Section 3.13(a) of the Company Disclosure Schedule lists the following agreements (each a “Contract”) to which the Company or any Subsidiary is a party:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties;
(ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $100,000, or (C) in which the Company or any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any services, products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement providing for any royalty, milestone or similar payments by the Company;
(iv) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(v) any agreement (or group of related agreements) under which the Company or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Lien on any of its assets, tangible or intangible;
(vi) any agreement for the disposition of any significant portion of the assets or business of the Company or any Subsidiary (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other Person (other than purchases of inventory or components in the Ordinary Course of Business);
(vii) any agreement concerning confidentiality, noncompetition or non-solicitation (other than confidentiality agreements with customers of the Company or any Subsidiary or Company Employees set forth in Part 3.9 the Company’s or the applicable Subsidiary’s standard terms and conditions of sale or standard form of employment agreement, copies of which have previously been delivered to the Buyer);
(viii) any employment agreement, consulting agreement, severance agreement (or agreement that includes provisions for the payment of severance), change in control, or retention agreement;
(ix) any settlement agreement or settlement-related agreement (including any agreement in connection with which any employment-related claim is settled);
(x) any agreement involving any current or former officer, director or shareholder of the Company or any Affiliate thereof;
(xi) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(xii) any agency, distributor, sales representative, franchise or similar agreements to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound;
(xiii) any agreement which contains any provisions requiring the Company or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the Ordinary Course of Business);
(xiv) any agreement that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company or any of the Subsidiaries or the Buyer or any of its subsidiaries as currently conducted and as currently proposed to be conducted;
(xv) any agreement, contract, license, covenant, assignment, instrument or other arrangement required to be listed in Section 3.12 of the Company Disclosure Schedule;
(xvi) any agreement that would entitle any third party to receive a license or any other right to Intellectual Property of the Buyer or any of the Buyer’s Affiliates (excluding the Company and the Subsidiaries) following the Closing;
(xvii) any Contract relating to the research, development, clinical trial, manufacturing, distribution, supply, marketing or co-promotion of any products in development by or which has been or which is being marketed, distributed, supported, sold or licensed out, in each case by or on behalf of Company or any of its Subsidiaries;
(xviii) any agreement that, following the Closing, would bind or purport to bind the Buyer or any of its Affiliates (excluding the Company and the Subsidiaries); and
(xix) any other agreement (or group of related agreements) either involving more than $100,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered to the Buyer a complete and accurate copy of each Contract (as amended to date). With respect to each Contract: (i) the Contract is legal, valid, binding and enforceable and in full force and effect against the Company or the Subsidiary that is the party thereto, as applicable, and, to the Company’s Knowledge, against each other party thereto, subject to the Bankruptcy and Equity Exception; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect against the Company or the Subsidiary that is the party thereto, as applicable, and, to the Company’s Knowledge, against each other party thereto immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing, subject to the Bankruptcy and Equity Exception; and (iii) neither the Company, any Subsidiary nor, to the Knowledge of the date Company, any other party, is, in any material respect, in breach or violation of, or default under, any such Contract, and no event has occurred, is pending or, to the Knowledge of this Agreementthe Company, neither is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute any such breach or default by the Company, any Subsidiary or, to the Knowledge of the Company, any other party under such Contract.
(c) Neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material oral contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contractarrangement which, arrangementif reduced to written form, commitment or understanding of the type would be required to be described listed in Section 3.9(a), whether or not set forth in Part 3.9(a3.13(a) of the Company Disclosure ScheduleSchedule under the terms of Section 3.13(a). Neither the Company nor any Subsidiary is a party to any written or oral arrangement (i) to perform services or sell products which is expected to be performed at, is referred or to herein as result in, a “Material Contract.” Except loss or (ii) for Material Contracts which the customer has already been billed or paid that expire in accordance with their terms during the Pre-Closing Period (excluding, have not been fully accounted for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractMost Recent Balance Sheet.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Eleven Biotherapeutics, Inc.)
Contracts. (a) Except as set forth in Part 3.9 Section 2.15 of the Company Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Seller is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than 12 months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Acquired Corporations (taken as Seller has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant any agreement providing for any royalty, milestone or similar payments by the Seller with respect to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, development or is reasonably expected to make expenditures in a future annual period, in excess sale of $2,500,000any product;
(iv) evidencing any agreement concerning the establishment or operation of a capital expenditure in excess of $2,500,000partnership, joint venture or limited liability company;
(v) containing any agreement (or group of related agreements) under which the Seller has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may be required to impose) a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying Security Interest on any business anywhere in the worldof its assets, tangible or intangible;
(vi) relating to any agreement for the disposition of any significant portion of the assets or evidencing Indebtedness, including any guarantee business of Indebtedness by the Company Seller or any Subsidiary agreement for the acquisition of the Company, assets or business of any other person (other than purchases of inventory or components in excess the Ordinary Course of $5,000,000Business);
(vii) that is an Inbound License any agreement concerning confidentiality, noncompetition or Outbound Licensenon-solicitation (excluding any confidentiality agreements with service providers, suppliers or employees of the Seller containing terms and conditions substantially as set forth in each casethe Seller’s standard form of agreement, that either (A) grants exclusive rights copies of which have previously been delivered or made available to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Buyer);
(viii) any employment agreement, consulting agreement, severance agreement (Aor agreement that includes provisions for the payment of severance) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Personretention agreement, other than sales representation, distribution, licensing and similar contracts entered into offer letters with employees (the form of which has been made available to the Buyer) providing for “at will” employment in the ordinary course form used by the Seller in the Ordinary Course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orBusiness;
(ix) any collective bargaining settlement agreement or settlement-related agreement (including any agreement in connection with which any employment-related claim is settled);
(x) any agreement involving any current or former officer, director or stockholder of the Seller or any Affiliate thereof;
(xi) any agreement not otherwise listed in Section 2.15(a) of the Disclosure Schedule under which the consequences of a default or termination would reasonably be expected to have a Seller Material Adverse Effect;
(xii) any agreement which contains any provisions requiring the Seller to indemnify any other Contract party (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the Ordinary Course of Business);
(xiii) any agreements relating to grants, funding or other forms of assistance, including loans with a labor organization interest at below market rates, received by the Seller from any Governmental Entity;
(xiv) any agreement that would reasonably be expected to have the effect of prohibiting or works council representing impairing the conduct of the business of the Seller or the Buyer or any of its employees or subsidiaries as currently conducted and as currently proposed to be conducted; and
(xv) any other similar Contractagreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) Each contract, arrangement, commitment The Seller has delivered to the Buyer a complete and accurate copy of each agreement listed in Section 2.13 or understanding Section 2.15 of the type required Disclosure Schedule. With respect to be described each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in Section 3.9(a), whether full force and effect; (ii) the agreement is assignable by the Seller to the Buyer without the consent or not approval of any party (except as set forth in Part 3.9(a) Section 2.4 of the Company Disclosure Schedule) and will continue to be legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with their the terms during thereof as in effect immediately prior to the Pre-Closing Period Closing; and (excluding, for iii) neither the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andSeller nor, to the knowledge of the CompanySeller, each any other party theretoparty, is in breach or violation of, or default under, any such agreement, and in full force and effectno event has occurred, except as may be limited by bankruptcyis pending or, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the CompanySeller, none is threatened, which, after the giving of the other parties thereto havenotice, violated in any material respect any provision ofwith lapse of time, or committed or failed to perform any actotherwise, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material defaultbreach or default by the Seller or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any knowledge of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including Seller, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.), Asset Purchase Agreement (Apellis Pharmaceuticals, Inc.)
Contracts. (a) Except as set forth in Part 3.9 Section 2.11(a) of the Company Seller Disclosure ScheduleLetter lists all Contracts, as of the date of this AgreementAgreement (other than Contracts that are Excluded Assets) that are to be transferred to Purchaser pursuant to Article I (collectively, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract“Material Contracts”), that constitute:
(i) that is a “leases or subleases for tangible personal property which require lease payments in excess of $10 million in the twelve (12) month period immediately following the date of this Agreement (other than those agreements which are terminable without material contract” penalty on sixty (as such term is defined in Item 601(b)(1060) of Regulation S-K of the Exchange Actdays’ notice);
(ii) pursuant to any Customer Contract (or portion thereof) under which one or more Seller Entities, Rexam Entities or Purchased Entities received payments from one or more Person (other than any Affiliates of the Acquired Corporations (taken as a wholeforegoing Seller Entities, Rexam Entities or Purchased Entities) received revenues for the fiscal year ended September 27purchase of two-piece metal beverage cans manufactured at one or more of the Facilities and representing an amount, 2014individually or in the aggregate, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
25 million or more during the twelve (iii12) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year months ended September 27December 31, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person2015, other than sales representation, distribution, licensing and similar contracts entered into purchase orders placed by customers in the ordinary course of business and such Contracts (or portions thereof) that relate solely to may be cancelled by such Seller Entity, Rexam Entity or Purchased Entity without material penalty upon no more than ninety (90) days’ notice;
(iii) any Supplier Contracts (or portion thereof) under which a Seller Entity, a Rexam Entity or a Purchased Entity made aggregate payments in excess of $15 million during the Company’s publishing twelve (12) months ended December 31, 2015, other than purchase orders placed in the ordinary course of business and do such Contracts (or portions thereof) that may be cancelled by such Seller Entity, Rexam Entity or Purchased Entity without material penalty upon no more than ninety (90) days’ notice;
(iv) any freight, transportation, warehouse services, logistics or similar Contracts (or portions thereof) under which a Seller Entity, a Rexam Entity or a Purchased Entity made aggregate payments in excess of $10 million during the twelve (12) months ended December 31, 2015, other than purchase orders placed in the ordinary course of business and such Contracts (or portions thereof) that may be cancelled by such Seller Entity, Rexam Entity or Purchased Entity without material penalty upon no more than ninety (90) days’ notice;
(v) Contracts requiring future capital expenditures in excess of $25 million;
(vi) a Contract relating to indebtedness of the Business (other than any Intercompany Agreements) for borrowed money in excess of $50 million in principal amount, other than that which will be repaid in full prior to Closing or that will not relate to the Company’s book manufacturing business, be an Assumed Liability or (D) requiring an Acquired Corporation to purchase all of its requirements Liability of a specified good Purchased Entity;
(vii) a guaranty for borrowed money of the Business (other than any Intercompany Agreements) in excess of $50 million, other than that which will be released prior to Closing or service from that will not be an Assumed Liability or Liability of a Purchased Entity;
(viii) any Person; orsupplier finance Contract having a value in excess of $25 million in the aggregate;
(ix) any material partnership or joint venture Contract involving sharing of revenues, profits, losses, costs or Liabilities with an unaffiliated third party;
(x) any material Intercompany Agreement, other than those that will be terminated prior to Closing;
(xi) any collective bargaining agreement, works council agreement or similar agreement with any union, works council or other Employee Representative Body other than any National Collective Bargaining Agreements (collectively, “Collective Bargaining Agreements”);
(xii) any material Business IP License; and
(xiii) any other Contract that obligates a Seller Entity, a Rexam Entity or a Purchased Entity (in each case with a labor organization or works council representing any respect to the Business) to pay an aggregate amount in excess of its employees or any $20 million to an unaffiliated third party in the twelve (12) month period immediately following the date of this Agreement other similar Contractthan an Employee Benefit Plan.
(b) Each contract, arrangement, commitment or understanding Seller has made available to Purchaser true and complete copies of all Material Contracts. As of the type required to be described date of this Agreement, each Material Contract is in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, full force and effect and is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on obligation of the applicable Acquired Corporation Seller Entity, Rexam Entity or Purchased Entity party thereto, as applicable, and, to the knowledge Knowledge of Seller, the Companycounterparty thereto. Each Seller Entity, each other party theretoRexam Entity or Purchased Entity, as applicable, has performed all obligations required to be performed by it to date under the Material Contracts and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which is not (with or without notice, the lapse of time or both would constitute a material defaultthe giving of notice, under the provisions of any Material Contractor both) in breach or default thereunder, except in each case for those violations and defaults whichfailures to perform that, individually or in the aggregate, do not or would not not, have or reasonably be expected to result in a Company Material have an Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (Ardagh Finance Holdings S.A.), Equity and Asset Purchase Agreement (Ball Corp)
Contracts. (a) Except as set forth in Part 3.9 Section 2.14 of the Company Disclosure Schedule, Schedule lists the following agreements to which any Company Entity is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined any agreement for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$300,000 per annum;
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues any agreement for the fiscal year ended September 27, 2014, purchase of products or is reasonably expected to receive revenues in a future annual period, in excess for the receipt of $10,000,000services from each supplier set forth on Section 2.21 of the Company Disclosure Schedule;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures any agreement for the fiscal year ended September 27, 2014, sale of products or is reasonably expected for the furnishing of services to make expenditures in a future annual period, in excess each customer set forth on Section 2.21 of $2,500,000the Company Disclosure Schedule;
(iv) evidencing any agreement establishing a capital expenditure in excess of $2,500,000partnership or joint venture;
(v) containing any agreement under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) any Indebtedness (including capitalized lease obligations) involving more than $750,000 or under which it has imposed (or may impose) a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying Security Interest on any business anywhere in the worldof its assets, tangible or intangible;
(vi) relating any agreement (an “Interested Party Agreement”) with (A) Parent or any affiliate (an “Affiliate”), as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of Parent, (B) any person directly or indirectly owning, controlling or holding power to vote five percent (5%) or evidencing Indebtednessmore of the outstanding voting securities of Parent or any of its Affiliates, including (C) any guarantee person, five percent (5%) or more of Indebtedness whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by Parent or any of its Affiliates, or (D) any director or officer of Parent or any of its Affiliates (other than the Company Entities) or any Subsidiary “associates” or members of the Company, “immediate family” (as such terms are respectively defined in excess Rule 12b-2 and Rule 16a-1 of $5,000,000the Exchange Act) of any such director or officer;
(vii) that is an Inbound License any agreement relating to the acquisition or Outbound Licensedisposition of any business (whether by merger, in each casesale of stock, that either (A) grants exclusive rights to sale of assets or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000otherwise);
(viii) (A) imposing onany material franchise, agency, dealer, sales representative, marketing or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or other similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; oragreement;
(ix) any collective bargaining agreement material agreement, commitment or other Contract arrangement with a labor organization or works council representing any of its employees or Governmental Entity; and
(x) any other similar Contractagreement, commitment or arrangement not made in the Ordinary Course of Business that is material to the Company Entities, taken as a whole.
(b) Each contract, arrangement, commitment or understanding The Company has made available to Buyers a complete and accurate copy of the type required to be described each agreement listed in Section 3.9(a), whether or not set forth in Part 3.9(a) 2.14 of the Company Disclosure Schedule. With respect to each agreement so listed (i) the agreement is legal, is referred valid, binding and enforceable and in full force and effect, subject to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during bankruptcy, insolvency and similar laws affecting the Pre-Closing Period rights of creditors generally, (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andii) no Company Entity nor, to the knowledge of the Company, each any other party thereto, and is in full force and effectmaterial breach or violation of, except as may be limited by bankruptcyor default under, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasany such agreement, and (iii) to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition existscircumstance has occurred that, which with notice or without notice, lapse of time or both both, would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) event of each Material Contractdefault thereunder.
Appears in 2 contracts
Sources: Transaction Agreement (SMART Modular Technologies (WWH), Inc.), Transaction Agreement (Smart Modular Technologies Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company Disclosure Schedule, is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $50,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than 12 months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $50,000, or (C) in which the Acquired Corporations (taken as Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, each establishes a partnership or joint venture;
(iv) other than the Bridge Notes and the Convertible Notes, any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under Exchange Act, thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Company to indemnify any other party theretothereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any other agreement (or group of related agreements) either involving more than $50,000 or not entered into in the Ordinary Course of Business; and
(xi) any agreement, other than as contemplated by this Agreement and the Bridge Loan, relating to the sales of securities of the Company to which the Company is a party.
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.13 of the Disclosure Schedule: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, except valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as may be limited by bankruptcyin effect immediately prior to the Closing; and (iii) the Company is not nor, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the is any other parties thereto haveparty, violated in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any knowledge of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including Company, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 2 contracts
Sources: Merger Agreement (Invivo Therapeutics Holdings Corp.), Merger Agreement (Invivo Therapeutics Holdings Corp.)
Contracts. (aSection 2(k) Except as set forth in Part 3.9 of the Company Disclosure Schedule lists the following contracts, agreements, and other written arrangements (other than Advertising Contracts which are listed in Section 2(s) of the Disclosure Schedule, as of ) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company is Sellers are a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which Sellers are imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000Sellers' assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnon-competition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, compensation agreement, employment agreement, commission agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Sellers or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Stations;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess written arrangement concerning a guaranty by either Seller of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to the obligations of any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Personparty; or
(ix) any collective bargaining agreement other written arrangement (or other Contract with group of related written arrangements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. The Sellers have delivered to the Buyers a labor organization or works council representing any correct and complete copy of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(k) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed which constitutes an Assumed Contract: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and enforceable and in full force and effect on identical terms following the Closing (if the arrangement has not expired according to the knowledge of the Company, none of the other parties thereto have, violated its terms); (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Sellers are not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually if reduced to written form, would be required to be listed in Section 2(k) of the Disclosure Schedule under the terms of this Section 2(k). Except for the Assumed Contracts, the Buyers shall not have any Liability or obligations for or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice respect of any of the foregoing. The Company has made available to Parent or Parent’s Representatives contracts set forth in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect theretoSection 2(k) of each Material Contractthe Disclosure Schedule or any other contracts or agreements of the Sellers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 2.14 of the Company Disclosure Schedule, Schedule lists the following agreements (written or oral) to which the Company is a party as of the date of this Agreement, neither Agreement (other than the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:Transaction Documentation (as hereinafter defined)):
(i) that any agreement (or group of related agreements) for the lease of personal property from or to third parties (A) which provides for lease payments in excess of $75,000 per annum or (B) which has a remaining term longer than 12 months and is a “material contract” not cancellable without penalty by the Company on sixty (as such term is defined in Item 601(b)(1060) of Regulation S-K of the Exchange Act)days or less prior written notice;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, is not cancellable without penalty by the Company on sixty (60) days or less prior written notice and involves more than the sum of $75,000, or (B) in which the Acquired Corporations (taken as Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, each is a material joint venture or legal partnership;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $75,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement that purports to limit in any material respect the right of the Company to engage in any line of business, or to compete with any person or operate in any geographical location;
(vi) any employment agreement or consulting agreement which provides for payments in excess of $50,000 per annum (other than employment or consulting agreements terminable on less than thirty (30) days’ notice);
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”) (other than stock subscription, stock option, restricted stock, warrant or stock purchase agreements the forms of which have been made available to Parent);
(viii) any agreement or commitment for capital expenditures in excess of $25,000, for a single project (it being represented and warranted that the liability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate for all projects);
(ix) any agreement which contains any provisions requiring the Company to indemnify any other party theretothereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any agreement, other than as contemplated by this Agreement, relating to the future sales of securities of the Company other than outstanding stock option, restricted stock, warrant or stock purchase agreements the forms of which have been made available to Parent ; and
(xi) any other agreement (or group of related agreements) (A) under which the Company is obligated to make payments or incur costs in excess of $75,000 in any year or (B) not entered into in the Ordinary Course of Business, in each case which is not otherwise described in clauses (i) through (xi).
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.14 of the Company Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.14 of the Company Disclosure Schedule: (i) the agreement is a legal, valid, binding and enforceable obligation of the Company and in full force and effect, except as such enforceability may be limited by under applicable bankruptcy, insolvencyinsolvency and similar laws, moratorium and other similar applicable law rules or regulations affecting creditors’ rights and remedies generally and by to general principles of equity. No Acquired Corporation has, whether applied in a court of law or a court of equity; (ii) the agreement will continue to be legal, valid, binding and enforceable obligation of the Company, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity, whether applied in a court of law or a court of equity and will be in full force and effect immediately following the Effective Time in accordance with the terms thereof as in effect immediately prior to the Effective Time; and (iii) neither the Company nor, to the knowledge of the Company, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or, to the knowledge of the Company, any other party under the provisions of any Material Contractsuch contract, except in each case for those violations and defaults whichany breach, individually violation or in the aggregate, would default that has not reasonably be expected to result in had a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Enumeral Biomedical Holdings, Inc.), Merger Agreement (Enumeral Biomedical Holdings, Inc.)
Contracts. (aSection 2(k) Except as set forth in Part 3.9 of the Company Disclosure Schedule lists the following contracts, agreements, and other written arrangements (other than with advertisers for the sale of air time which are listed in Section 2(s) of the Disclosure Schedule, as of ) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, compensation agreement, employment agreement, commission agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Stations;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess written arrangement concerning a guaranty by the Seller of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to the obligations of any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Personparty; or
(ix) any collective bargaining agreement other written arrangement (or other Contract with group of related written arrangements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. The Seller has delivered to the Buyer a labor organization or works council representing any correct and complete copy of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(k) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed which constitutes an Assumed Contract: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and enforceable and in full force and effect on identical terms following the Closing (if the arrangement has not expired according to the knowledge of the Company, none of the other parties thereto have, violated its terms); (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually if reduced to written form, would be required to be listed in Section 2(k) of the Disclosure Schedule under the terms of this Section 2(k). Except for the Assumed Contracts, the Buyer shall not have any Liability or obligations for or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice respect of any of the foregoing. The Company has made available to Parent or Parent’s Representatives contracts set forth in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect theretoSection 2(k) of each Material Contractthe Disclosure Schedule or any other contracts or agreements of the Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. (a) Except as set forth in Part 3.9 of for (i) this Agreement or (ii) the Company Disclosure SchedulePlans and Company Stock Plan (and any Restricted Stock Rights or Performance Shares granted under the Company Stock Plan), as of the date of this Agreementhereof, neither the no Company nor any Subsidiary of the Company Party is a party to or is bound by any ContractContract that:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange ActSEC);
(ii) pursuant (1) purports to limit in any material respect either the type of business in which the Acquired Corporations Company or any of its subsidiaries or Joint Ventures (taken including those Contracts of the Company Parties that purport to so limit the Parent Parties after the Effective Time) or any of their respective Affiliates may engage or the manner or geographic area in which any of them may so engage in any business, (2) would require the disposition of any material assets or line of business of the Company or its subsidiaries or Joint Ventures (including those Contracts of the Company Parties that so require the Parent Parties after the Effective Time) or any of their respective Affiliates as a wholeresult of the consummation of the transactions contemplated by this Agreement, including the Merger, (3) received revenues for is a material Contract that grants “most favored nation” status that, following the fiscal year ended September 27Effective Time, 2014would impose obligations upon the Parent Parties (including the Company Parties), (4) prohibits or limits, in any material respect, the right of the Company or any of its subsidiaries or Joint Ventures (including those Contracts of the Company Parties that so prohibit or limit any Parent Party after the Effective Time) to make, sell or distribute any products or services or use, transfer, license or enforce any of their respective Intellectual Property rights, (5) is with a Governmental Entity (other than ordinary course Contracts with Governmental Entities), (6) grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its subsidiaries or Joint Ventures (or, after the Effective Time, any Parent Party) to own, operate, lease, provide or receive services, or sell, transfer, pledge, or otherwise dispose of any material amount of its assets or its business, or (7) is reasonably expected to receive revenues in approved by FERC as a future annual period, in excess of $10,000,000special or nonconforming Contract or service agreement that deviates from standard tariffs;
(iii) pursuant is a partnership, joint venture or similar Contract that, in each case, is material to which the Acquired Corporations (Company and its subsidiaries taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure under which the Company or any of its subsidiaries (A) is liable for indebtedness in excess of $2,500,00050,000,000 or (B) guarantees any indebtedness of a third party that is not a Company Party;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, expressly limits or otherwise restricting restricts the ability of the Company or any Acquired Corporation from carrying on any business anywhere in the worldof its subsidiaries to pay dividends or make distributions to its shareholders;
(vi) relating by its terms calls for aggregate payments by or to the Company and its subsidiaries under such Contract of more than $50,000,000 over the remaining term of such Contract (other than (A) this Agreement, (B) Contracts subject to clause (iv) above, (C) Contracts for the transportation, transmission, processing, storage, purchase, exchange or evidencing Indebtednesssale of gas, including any guarantee of Indebtedness coal, oil, nuclear fuel or electric energy, the obligations under which are subject to review by Governmental Entities regulating utilities in the jurisdictions in which the Company or any Subsidiary of the Company, in excess of $5,000,000its subsidiaries operate and (D) immaterial financial derivative interest rate ▇▇▇▇▇▇);
(vii) that is an Inbound License relates to the pending acquisition or Outbound Licensepending disposition of any asset (including any entity or business whether by merger, in each casesale of stock, that either (Asale of assets or otherwise) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation for consideration in excess of $250,000;50,000,000; or
(viii) is a Company Collective Bargaining Agreement. Each Contract (Ai) imposing on, set forth (or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described set forth) in Section 3.9(a), whether or not set forth in Part 3.9(a) 3.8 of the Company Disclosure Schedule, (ii) filed as an exhibit to the Company SEC Reports as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, or (iii) disclosed by the Company on a Current Report on Form 8-K as a “material contract” (excluding any Company Plan), is referred to herein as a “Company Material Contract”. Other than any Company Material Contract filed as an exhibit to the Company SEC Reports prior to the date of this Agreement and other than this Agreement, the Company has made available to Parent a true, complete and correct copy of each Company Material Contract.” Except for
(b) Each of the Company Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingis a legal, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on obligation of, and enforceable against, the applicable Acquired Corporation Company Party that is a party thereto and, to the knowledge of the Company, each other party thereto, and is in full force and effecteffect in accordance with its terms, subject to the Bankruptcy and Equity Exception, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles (i) to the extent that any Company Material Contract expires or terminates in accordance with its terms in the ordinary course of equity. No Acquired Corporation hasbusiness consistent with past practice, and (ii) for such failures to be legal, valid and binding or to be in full force and effect that do not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) No event has occurred that, with notice or the passage of time, or both, would constitute a breach or default by the Company or any of its subsidiaries under any such Company Material Contract, and, to the knowledge of the Company, none no other party to any Company Material Contract is in breach or default (nor has any event occurred which, with notice or the passage of the other parties thereto have, violated in any material respect any provision oftime, or committed or failed to perform any actboth, and no event or condition exists, which with or without notice, lapse of time or both would constitute such a material breach or default, ) under the provisions of any Company Material Contract, except in each case for those violations where such violation, breach, default or event of default does not have and defaults whichwould not reasonably be expected to have, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of Effect on the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractCompany.
Appears in 2 contracts
Sources: Merger Agreement (Avangrid, Inc.), Merger Agreement (Texas New Mexico Power Co)
Contracts. Section 2.14 of the Disclosure Schedule lists the following written arrangements to which the Company is a party:
(a) Except as set forth any written arrangement for the lease of personal property from or to third parties providing for lease payments in Part 3.9 excess of $15,000 per annum;
(b) any written arrangement for the licensing or distribution of software, products or other personal property or for the furnishing or receipt of services: (i) which calls for performance over a period of more than one year; (ii) which involves more than the sum of $15,000; or (iii) in which the Company has granted rights to license, sublicense or copy, "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(c) any written arrangement establishing a partnership or joint venture;
(d) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $15,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(e) any written arrangement concerning confidentiality or noncompetition;
(f) any written arrangement with any of the Company Disclosure ScheduleStockholders or their affiliates, as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") ("Affiliates");
(g) any written arrangement under which the consequences of a default or termination could have a material adverse effect on the assets, business, financial condition, results of operations or future prospects of the Company;
(h) any other written arrangement including those not entered into in the Ordinary Course of Business involving more than $15,000;
(i) other than arrangements pursuant to the Company's standard form maintenance and/or support agreement, the form of which has been provided to the Buyer, any written arrangement under which the Company provides maintenance or support services to any third party with regard to the Company's products and any written arrangement containing a commitment by the Company to provide support for any such products for more than one year from the date of this Agreement, neither ; and
(j) any written arrangement by which the Company nor agrees to make available any Subsidiary Stalker series, WebStalker series or other product. The Company has delivered to the Buyer a correct and complete copy of each written arrangement (as amended to date) listed in Section 2.14 of the Company is a party Disclosure Schedule. With respect to or is bound by any Contract:
each written arrangement so listed: (i) that the written arrangement is a “material contract” (as such term is defined legal, valid, binding and enforceable and in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant full force and effect with respect to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the Company's knowledge of the Companywritten arrangement is legal, valid, binding and is enforceable and in full force and effect with respect to each other party thereto, and in full force and effect, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and or other similar applicable law affecting laws effecting the enforcement of creditors’ ' rights generally and by general principles of equity. No Acquired Corporation hasgenerally, and except that the availability of equitable remedies, including specific performance, is subject to the knowledge discretion of the court before which any proceedings therefor may be brought; (ii) the written arrangement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect prior to the Closing and does not require the consent of any party to the transactions contemplated hereby; and (iii) the Company is not in breach or default, to the Company's knowledge, none of the no other parties party thereto have, violated is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event has occurred which, with notice or condition exists, which with or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoingarrangement. The Company has made available is not a party to Parent any oral contract, agreement or Parent’s Representatives other arrangement which, if reduced to written form, would be required to be listed in Section 2.14 of the Data Room prior to Disclosure Schedule under the date terms of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractSection 2.14.
Appears in 2 contracts
Sources: Merger Agreement (Trusted Information Systems Inc), Merger Agreement (Smaha Stephen E)
Contracts. (a) Except (x) as set forth in Part 3.9 of the Company Disclosure Schedule, filed as of an exhibit to a Tag Report prior to the date of this Agreement, (y) for the Tag Benefit Plans, or (z) as set forth on Section 5.17(a) of the Tag Disclosure Letter, neither the Company Tag nor any Tag Subsidiary of the Company is a party to or is bound by any Contract of the following type in effect as of the date of this Agreement (it being understood that and any Contract or group of related Contracts with the same party or group of Affiliated parties shall be treated as a single Contract in determining the dollar value of such Contract(s) in relation to any dollar thresholds below) (each, a “Tag Material Contract:”):
(i) any Contract to which Tag or any of its Subsidiaries is a party that is a “material contract” (as such term is defined in required to be filed by Tag with the SEC pursuant to Item 601(b)(10) of Regulation S-K of promulgated under the Exchange Act), excluding any such Contract that has expired or been terminated or otherwise no longer in effect;
(ii) pursuant other than Constituent Documents of wholly owned Tag Subsidiaries, any Contract that is a joint venture agreement, strategic partnership agreement, limited liability company operating agreement and partnership agreements or arrangements relating to the formation, creation, operation, management or control of any material partnership, strategic alliance or joint venture, to which Tag or any Tag Subsidiary is a party;
(iii) any Contract that (A) restricts in any material respect the Acquired Corporations ability of Tag or any Tag Subsidiary to compete in any line of its business with any Person or anywhere in the world or during any period of time or (B) obligates Tag or any Tag Subsidiary to grant any “most favored nations” pricing provision or similar rights, and/or “exclusivity,” rights of first refusal or offer or any similar requirement or right in favor of any third party that would be material to the business of Tag and the Tag Subsidiaries, taken as a whole;
(iv) received revenues any Contract, other than Contracts with customers, suppliers, and dealers entered into in the ordinary course of business, that provides for payments to or from Tag and the Tag Subsidiaries in excess of $10,000,000 for the fiscal year ended September 27, 2014, twelve-month period prior to the date hereof;
(v) any Contract under which Tag or any Tag Subsidiary is reasonably expected to receive revenues in a future annual period, or may be liable for any Indebtedness in excess of $10,000,000;
(iiivi) any Contract entered into in the five (5) year period prior to the date hereof that (A) relates to the acquisition (whether by merger, sale of equity interests, sale of assets, capital contribution or otherwise) by Tag or any Tag Subsidiary of any corporation, partnership or other business, or organization or division thereof, pursuant to which the Acquired Corporations (taken as Tag or a whole) made expenditures for the fiscal year ended September 27Tag Subsidiary has any continuing material indemnification, 2014guarantee, or is reasonably expected other material contingent, deferred or fixed payment obligations or rights (including “earnouts” and other contingent or deferred consideration), (B) relates to make expenditures in the disposition (whether by merger, sale of equity interests, sale of assets, capital contribution or otherwise) by Tag or a future annual periodTag Subsidiary of any corporation, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting partnership or restricting any Acquired Corporation from competing in any business or geographic areaother business, or from soliciting customers organization or employeesdivision thereof, pursuant to which Tag or such Tag Subsidiary has any continuing material indemnification, guarantee, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
other material contingent, deferred or fixed payment obligations or rights (viincluding “earnouts” and other contingent or deferred consideration), or (C) relating contains a put, call, right of first refusal or similar right pursuant to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company which Tag or any Tag Subsidiary could be required to acquire or dispose of, as applicable, any of the Company, in excess of $5,000,000foregoing;
(vii) any Contracts that are conciliation, settlement or similar agreements pursuant to which Tag or any Tag Subsidiary is an Inbound License or Outbound License, in each case, that either will be required to (A) grants exclusive rights to make payments in excess of $2,000,000 individually or from an Acquired Corporation $10,000,000 in aggregate, or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000satisfy any material non-monetary obligation;
(viii) any Contracts material to the operation of the business of Tag and the Tag Subsidiaries pursuant to which (A) imposing onany Person has licensed any Intellectual Property to Tag or any Tag Subsidiary or granted Tag or any Tag Subsidiary any covenant not to sue, excluding licenses with respect to commercially available software or technology, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” Tag or similar status any Tag Subsidiary has granted any Person a license to use any Person, (C) granting any type of exclusive rights Tag Owned Intellectual Property or a covenant not to any Person, sue with respect thereto other than sales representation, distribution, licensing and similar contracts entered into licenses granted in the ordinary course course, including licenses granted in connection with the sale of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, any products or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orservices;
(ix) any collective bargaining Contracts that are with any Affiliate of Tag or any Tag Subsidiary (other than any contract, agreement or other instrument between Tag or any Tag Subsidiary and Tag or another Tag Subsidiary); or
(x) any Contract with a labor organization or works council representing to enter into any of its employees or any other similar Contractthe foregoing.
(b) Each contract, arrangement, commitment Except as has not resulted in or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse EffectEffect on Tag, (a) subject to the Bankruptcy and Equity Exception, each Tag Material Contract is a valid and binding agreement of Tag or a Tag Subsidiary, as the case may be, and, to the knowledge of Tag, the other parties thereto, and no Acquired Corporation has received written notice is in full force and effect; (b) none of Tag, any Tag Subsidiary or, to the knowledge of Tag, any other party thereto, is in default or breach in any respect under the terms of any such Tag Material Contract; (c) since January 1, 2024, neither Tag nor any Tag Subsidiary, as the case may be, has waived any right or relinquished any benefit under any such Tag Material Contract; and (d) no event has occurred, which, after the giving of notice, with lapse of time, or otherwise, would constitute a default by Tag or any Tag Subsidiary or, to the foregoingknowledge of Tag, any other party under such Tag Material Contract. The Company has True, correct and complete copies of each Tag Material Contract (including all modifications and amendments thereto and waivers thereunder) have been made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractRolex.
Appears in 2 contracts
Sources: Merger Agreement (REV Group, Inc.), Merger Agreement (Terex Corp)
Contracts. (a) Except as set forth in Part 3.9 of the Company Disclosure Schedule, as As of the date of this Agreement, except as set forth as an exhibit to the Company SEC Documents or on Section 3.11(a) of the Company Disclosure Letter, neither the Company nor any Subsidiary of the Company its Subsidiaries is a party to or is bound by any Contractany:
(i) Contracts relating to Indebtedness for borrowed money or any guarantee of any Indebtedness for borrowed money (other than in respect of Indebtedness for borrowed money of a wholly-owned Subsidiary of the Company) in excess of $1,000,000;
(ii) Non-competition agreements or any other agreements or arrangements that is materially limit or otherwise materially restrict the Company or any of its Subsidiaries or any of their respective Affiliates or any successor thereto or that, to the Company’s Knowledge, would, after the Effective Time, limit or restrict Parent or any of its Subsidiaries (including the Surviving Corporation) or any successor thereto, in each case from engaging or competing in any line of business or in any geographic area, which agreement or arrangements would reasonably be expected to materially limit, materially restrict or materially conflict with the business of Parent and its Subsidiaries, taken as a “material contract” whole (including for purposes of such determination, the Surviving Corporation and its Subsidiaries), after giving effect to the Merger;
(iii) Contracts required to be filed as such term is defined in an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K of under the Exchange Securities Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure Contracts, including Company Oil and Gas Agreements, where the Company or any of its Subsidiaries has received or expects to receive $1,000,000 or more in excess of $2,500,000revenues pursuant to such agreements in the current fiscal year;
(v) containing Contracts with respect to the receipt of any goods and services involving a covenant prohibiting payment of $1,000,000 or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldmore per annum;
(vi) Joint venture, alliance, partnership or limited liability company agreements or similar Contracts relating to the formation, creation, operation, management or evidencing Indebtednesscontrol of any joint venture, including alliance, partnership or limited liability company that (A) is material to the Company, any guarantee of Indebtedness by its Subsidiaries or any of the Oil and Gas Properties of the Company or any Subsidiary of its Subsidiaries; (B) is material to any investment in, or other commitment to, any Related Entity of the Company, ; or (C) would reasonably be expected to require the Company or its Subsidiaries to make expenditures in excess of $5,000,000;1,000,000 or more in the current fiscal year; or
(vii) Contracts that would prevent, materially delay or materially impede the consummation of the transactions contemplated by this Agreement.
(b) All Contracts to which the Company or any of its Subsidiaries is an Inbound License a party to or Outbound Licensebound by as of the date of this Agreement that are either (i) of the type described in clause (a) above or (ii) material Company Oil and Gas Agreements relating to Oil and Gas Properties of the Company and its Subsidiaries are referred to herein as the “Company Material Contracts.” Except, in each case, that either (A) grants exclusive rights as has not, and would not reasonably be expected to have, individually or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing onthe aggregate, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000a Company Material Adverse Effect, (Bi) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation Company and/or the relevant Subsidiary of the Company that is a party thereto and, to the knowledge of the Company’s Knowledge, each other party thereto, subject to the Bankruptcy and Equity Exception, (ii) all Company Material Contracts are in full force and effect, except as may (iii) the Company and each of its Subsidiaries has performed all material obligations required to be limited performed by bankruptcythem under the Company Material Contracts to which they are parties, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and (iv) to the knowledge Company’s Knowledge, each other party to a Company Material Contract has performed all material obligations required to be performed by it under such Company Material Contract and (v) no party to any Company Material Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, change the scope of rights under or fail to renew any Company Material Contract and neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to any Company Material Contract, has repudiated in writing any material provision thereof. Neither the Company nor any of its Subsidiaries has Knowledge of, or has received written notice of, any violation of or default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under or permit termination, modification or acceleration under) any Company Material Contract or any other Contract to which the Company or any of its Subsidiaries is a party or by which the Company, none any of the other parties thereto have, violated in its Subsidiaries or any of their respective material respect any provision of, properties or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contractassets is bound, except in each case for those violations and or defaults whichthat are not, individually or in the aggregate, would not reasonably be expected likely to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Contracts. (a) Except as set forth in Part 3.9 for this Agreement and the contracts filed with the Company Reports, Section 5.15(a) of the Company Disclosure ScheduleLetter sets forth, as of the date of this Agreement, neither each contract (other than Company Real Property Leases) to which the Company nor or any Company Subsidiary of the Company is a party to or by which it is bound by any Contractbound:
(i) that which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of S‑K promulgated by the Exchange ActSEC);
(ii) pursuant that (A) limits, restricts or prohibits the Company or any Company Subsidiary (or, after giving effect to which the Acquired Corporations transactions contemplated by this Agreement, would limit, restrict or prohibit Parent or any of its Affiliates) from conducting any material business or doing material business with any Person in any geographical area, (taken as a wholeB) received revenues for the fiscal year ended September 27, 2014grants “most favored nation” status to any Person other than Medicaid participation agreements, or is reasonably expected to receive revenues in a future annual period(C) could require the disposition of any material assets or line of business of the Company or any Company Subsidiary (or, after the Effective Time, Parent or any of its subsidiaries), in excess the case of $10,000,000each of sub-clauses (A), (B) and (C), except for any such contract that may be canceled without any material payment by the Company or any Company Subsidiary upon notice of ninety (90) days or less;
(iii) (A) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, Company or is reasonably expected any Company Subsidiary may be required to make expenditures in a future annual period, pay in excess of Fifty Million Dollars ($2,500,00050,000,000) during calendar year 2015, (B) to the extent a contract was entered into in calendar year 2015, pursuant to which the Company or any Company Subsidiary may be required to pay in excess of Fifty Million Dollars ($50,000,000) during the first twelve (12) months of the term, and (C) pursuant to which the Company or any Company Subsidiary is required to pay in excess of Fifty Million Dollars ($50,000,000) during any twelve (12) month period during the term of such contract, in the case of each of sub-clauses (A), (B) and (C), other than such contracts that may be canceled without any material payment by the Company or any Company Subsidiary upon notice of ninety (90) days or less;
(iv) evidencing relating to indebtedness, in each case with respect to a capital expenditure principal amount in excess of Fifty Million Dollars ($2,500,00050,000,000) other than any such contract solely between or among the Company and the Company Subsidiaries;
(v) containing which is with an executive officer and contains a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnon-compete provision;
(vi) relating to the creation, formation, operation, management or evidencing Indebtednesscontrol of any partnerships, including joint ventures or similar arrangements;
(vii) is currently in effect and contains a put, call right of first refusal, right of first offer or other right pursuant to which the Company or any guarantee Company Subsidiary could be required to acquire, dispose of, purchase or sell, as applicable, substantially all of Indebtedness the capital stock, substantially all of the assets or material line of business of the Company or any current or former Company Subsidiary;
(viii) that obliges the Company or any Company Subsidiary to make any earn-out payments or other contingent payments (but not indemnification payments) in connection with the acquisition or divestment of a business or Person by the Company or any Subsidiary Company Subsidiary, which have not been paid in full as of the Companydate hereof;
(ix) containing any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities of another Person where such commitment remains in effect as of the date hereof;
(x) (x) obligates the Company or any Company Subsidiary to make a loan or capital contribution to, or investment in excess of Ten Million Dollars ($5,000,000;
(vii10,000,000) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status Person other than loans to any Person, (C) granting any type of exclusive rights Company Subsidiary and advances to any Person, other than sales representation, distribution, licensing and similar contracts entered into employees in the ordinary course of business consistent with past practice or (y) obligates the Company or any Company Subsidiary to provide a guarantee that would reasonably be expected to result in payments in excess of Ten Million Dollars ($10,000,000) other than guarantees by the Company or any Company Subsidiary of another Company Subsidiary’s obligations;
(xi) which is with any Governmental Entity and contains any continuing obligations that relate solely are material to the Company’s publishing business Company or any Company Subsidiary;
(xii) with any third-party service providers for the provision of billing and do not relate collection services to the Company’s book manufacturing business, Company or (D) requiring an Acquired Corporation any Company Subsidiary that is material to purchase all of its requirements of a specified good the Company or service from any Person; orCompany Subsidiary;
(ixxiii) pursuant to which the Company or any collective bargaining agreement Company Subsidiary received during calendar year 2014 or other Contract with a labor organization expects to receive during calendar year 2015 payments in excess of Fifty Million Dollars ($50,000,000); and
(xiv) which commits the Company or works council representing any Company Subsidiary to enter into any of its employees or any other similar the foregoing. Each of the contracts of the type described in this Section 5.15 is referred to in this Agreement as a “Company Contract.”
(b) Each contractExcept as would not, arrangementindividually or in the aggregate, commitment or understanding of the type required reasonably be expected to be described in Section 3.9(a)have a Company Material Adverse Effect, whether or not set forth in Part 3.9(a(i) of neither the Company Disclosure Schedule, nor any Company Subsidiary is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge Knowledge of the Company, each no other party theretois, in breach or violation of, or in default under, any Company Contract, (ii) no event has occurred which would result in a breach or violation of, or a default under, any Company Contract by the Company or any Company Subsidiary or, to the Knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both), (iii) each Company Contract is valid, binding and enforceable in full force and effectaccordance with its terms, except as may be limited by applicable bankruptcy, insolvency, moratorium reorganization, moratorium, fraudulent transfer and other similar applicable law laws of general applicability relating to or affecting creditors’ rights generally and or by general equity principles of equity. No Acquired Corporation has, and (iv) each Company Contract is in full force and effect with respect to the knowledge Company or the Company Subsidiaries, as applicable, and, to the Knowledge of the Company, none of with respect to the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (CVS HEALTH Corp), Merger Agreement (CVS HEALTH Corp)
Contracts. (a) Except as set forth in Part 3.9 Section 3.16 of the Company Disclosure Schedule, as Schedule of Exceptions contains a list of the date of this Agreement, neither the Company nor any Subsidiary of following contracts and other agreements to which the Company is a party, whether written or oral, other than those contracts and other agreements that have been fully performed by all parties thereto and under which no party thereto has any rights or obligations:
(a) any agreement (or group of related agreements) for the lease of personal property to or from any Person for over $50,000 in any 12-month period;
(b) any agreement for the purchase, sale or lease of real property;
(c) any agreement (or group of related agreements) for the purchase or sale of any raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services for which the Company was paid (or paid) more than $50,000 in either 2013 or 2014 or is bound by entitled to receive (or obligated to pay) more than $50,000 in any Contract:12-month period commencing after December 31, 2014;
(d) any agreement granting any Person the exclusive right to market, sell or distribute any of the Company’s products, whether in any geographic territory, to any customer or account, or otherwise;
(e) any agreement concerning a partnership, joint venture or other similar arrangement involving a sharing of profits and losses with any Person;
(f) except for agreements relating to trade receivables entered into in the Ordinary Course of Business, any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness, or any capitalized lease obligation or under which it has imposed a Lien (other than a Permitted Lien) on any of its assets, tangible or intangible;
(g) any agreement which materially restricts the Company from competing in any line of business or geographic area;
(h) any profit-sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(i) that is any collective bargaining agreement;
(j) any agreement for the employment of any individual on a “material contract” full-time, part-time, consulting, or other basis (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Actincluding leased persons);
(iik) pursuant any agreement pertaining to the marketing, sale or distribution of any of the Company’s products (including any agreements creating an agency relationship or providing for the resale of any of the Company’s products);
(l) any agreement requiring the Company to pay to any Person a royalty, commission or other payment, the amount of which is based in whole or in part on the sales of products by the Company;
(m) any agreement under which the Acquired Corporations Company has advanced or loaned any amount to any of its directors, officers or employees;
(taken as n) any agreement under which the Company has advanced or loaned any amount to any other Person;
(o) any agreement that requires the Company to purchase its total requirements of any product or service from a wholethird party or that contains “take or pay” provisions;
(p) received revenues for any agreement with any Company Stockholder or their Affiliates;
(q) any agreement that relates to the fiscal year ended September 27acquisition or disposition of any business division or material assets or properties (whether by merger, 2014sale of stock, sale of assets or is reasonably expected otherwise);
(r) any agreement that relates to receive revenues in a future annual period, the compromise or settlement of any litigation or arbitration or other proceeding; and
(s) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $10,000,000;
(iii) pursuant 100,000 or that is otherwise material to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License Business or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business condition (financial or otherwise) or results of operations. The Company has made available to Parent a correct and do not relate complete copy of each such written agreement as amended to date and a written summary setting forth the Company’s book manufacturing businessmaterial terms and conditions of each such oral agreement. With respect to each such agreement: (i) the agreement is a legal, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contractvalid, arrangementbinding, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) enforceable obligation of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge Knowledge of the Company, each other party thereto, and is in full force and effecteffect in accordance with its terms in all material respects, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and subject in each case to the knowledge Enforceability Limitations; (ii) neither the Company nor, to the Knowledge of the Company, none of the any other parties party thereto haveis in breach or default, violated in any material respect any provision of, or committed or failed to perform any actrespect, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material breach or default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendmentpermit termination, modification, extension or renewal with respect theretoacceleration under the agreement; and (iii) no party has repudiated in writing any material provision of each Material Contractthe agreement.
Appears in 2 contracts
Sources: Merger Agreement (Globus Medical Inc), Merger Agreement
Contracts. (aSection 2(k) Except as set forth in Part 3.9 of the Company Disclosure Schedule lists the following contracts, agreements, and other written arrangements (other than with advertisers for the sale of air time which are listed in Section 2(s) of the Disclosure Schedule, as of ) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, compensation agreement, employment agreement, commission agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Station;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess written arrangement concerning a guaranty by the Seller of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to the obligations of any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Personparty; or
(ix) any collective bargaining agreement other written arrangement (or other Contract with group of related written arrangements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. The Seller has delivered to the Buyer a labor organization or works council representing any correct and complete copy of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(k) of the Company Disclosure ScheduleSchedule (as amended to date). With respect to each written arrangement so listed which constitutes an Assumed Contract: (A) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and enforceable and in full force and effect on identical terms following the Closing (if the arrangement has not expired according to the knowledge of the Company, none of the other parties thereto have, violated its terms); (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually if reduced to written form, would be required to be listed in Section 2(k) of the Disclosure Schedule under the terms of this Section 2(k). Except for the Assumed Contracts, the Buyer shall not have any Liability or obligations for or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice respect of any of the foregoing. The Company has made available to Parent or Parent’s Representatives contracts set forth in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect theretoSection 2(k) of each Material Contractthe Disclosure Schedule or any other contracts or agreements of the Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumulus Media Inc), Asset Purchase Agreement (Cumulus Media Inc)
Contracts. (a) Except as set forth executed in Part 3.9 connection with the transactions contemplated herein, Section 4(p) of the Company Disclosure Schedule, as of Schedule lists the date of this Agreement, neither the Company nor any Subsidiary of the Company following contracts and other agreements to which WellComm is a party to or is bound by any Contractparty:
(i) that is a “material contract” any agreement (as such term is defined or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$35,000 per annum;
(ii) pursuant to which the Acquired Corporations any agreement (taken as a wholeor group of related agreements) received revenues for the fiscal year ended September 27purchase or sale of raw materials, 2014commodities, supplies, products, or is reasonably expected to receive revenues other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, result in a future annual periodmaterial loss to WellComm, or involve consideration in excess of $35,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000,000;
(iii) pursuant to 35,000 or under which the Acquired Corporations (taken as it has imposed a whole) made expenditures for the fiscal year ended September 27Security Interest on any of its assets, 2014, tangible or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000intangible;
(v) containing a covenant prohibiting any agreement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or agreement with any Subsidiary of the Company, in excess of $5,000,000WellComm Stockholder and their Affiliates (other than WellComm);
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000any collective bargaining agreement;
(viii) (A) imposing onany agreement for the employment of any individual on a full-time, part-time, consulting, or granting to, an Acquired Corporation any future minimum take-or-pay requirements other basis providing annual compensation in excess of $100,000, (B) granting “most favored nation,” “most favored customer” 35,000 or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; orproviding severance benefits;
(ix) any collective bargaining agreement under which it has advanced or other Contract with a labor organization or works council representing loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business;
(x) any agreement under which the consequences of a default or termination could have a WellComm Material Adverse Effect; or
(xi) any other similar Contract.
agreement (bor group of related agreements) Each contract, arrangement, commitment or understanding the performance of the type required which involves consideration in excess of $35,000. WellComm has delivered to be described I-trax a correct and complete copy of each written agreement listed in Section 3.9(a), whether or not set forth in Part 3.9(a4(p) of the Company Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 4(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubtbinding, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the agreement will continue to be legal, except as may be limited by bankruptcyvalid, insolvencybinding, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasenforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) WellComm and, to the knowledge Knowledge of the CompanyWellComm, none of the other parties thereto haveparty thereto, violated is not in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material breach or default, or permit termination, modification, or acceleration, under the provisions of agreement; and (D) no party has repudiated any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any provision of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractagreement.
Appears in 2 contracts
Sources: Merger Agreement (I Trax Inc), Merger Agreement (I Trax Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company Disclosure Schedule, is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than 12 months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Acquired Corporations (taken as Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, each establishes a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a security interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”);
(viii) any agreement or commitment for capital expenditures in excess of $25,000, for a single project (it being represented and warranted that the liability under all undisclosed agreements and commitments for capital expenditures does not exceed $100,000 in the aggregate for all projects);
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(x) any agreement which contains any provisions requiring the Company to indemnify any other party theretothereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the ordinary course of business);
(xi) any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the ordinary course of business; and
(xii) any agreement, other than as contemplated by this Agreement, relating to the sales of securities of the Company to which the Company is a party.
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Section 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.13 of the Disclosure Schedule: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, except valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as may be limited by bankruptcyin effect immediately prior to the Closing; and (iii) neither the Company nor, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the any other parties thereto haveparty, violated is in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time or both otherwise, would constitute a material defaultbreach or default by the Company or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any knowledge of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including Company, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 2 contracts
Sources: Merger Agreement (U.S. Rare Earth Minerals, Inc), Merger Agreement (First Harvest Corp.)
Contracts. (a) Except as set Schedule 5.10(a) sets forth in Part 3.9 all of the Company Disclosure Schedule, following Contracts as of the date of this Agreement, neither Agreement (the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
“Material Contracts”): (i) that is a “material contract” (as such term is defined in Item 601(b)(10) any Contract between an Acquired Company, on the one hand, and any Affiliate of Regulation S-K of either Acquired Company or the Exchange Act);
Seller, on the other hand; (ii) pursuant to which any Contract that provides for gathering, transportation, marketing, processing, treating or storage services; (iii) any Contract that provides for (A) the Acquired Corporations construction or operation of processing plants, gathering systems or other related assets or (taken as a wholeB) received revenues for the fiscal year ended September 27acreage dedications or minimum volume commitments, 2014, in each case involving annual payments or is reasonably expected to receive revenues in a future annual period, receipts in excess of $10,000,000;
250,000 and that is not cancelable without further penalty or other material payment on not more than thirty (30) days’ prior written notice; (iii) pursuant to which any Contract evidencing Indebtedness of the Acquired Corporations Companies or creating any security interest, lien or encumbrance (taken as a wholeother than Permitted Encumbrances and other than any of the Easements) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess on any asset of $2,500,000;
any Acquired Company; (iv) evidencing a capital expenditure any Contract that constitutes an area of mutual interest agreement or any other agreement that purports to restrict, limit or prohibit the manner in excess of $2,500,000;
which, or the locations in which, the Acquired Companies conduct business that will be binding on the Acquired Companies after the Closing; and (v) containing any other Contract to which an Acquired Company is a covenant prohibiting beneficiary or restricting any obligor that can reasonably be expected to result in aggregate payments or receipts by an Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in Company of more than $250,000 during the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company current or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contractsubsequent year.
(b) Each contractExcept as set forth on Schedule 5.10(b), arrangement, commitment each Material Contract set forth (or understanding of the type required to be described in Section 3.9(a)set forth) on Schedule 5.10(a) is a legal, whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on obligation against the applicable Acquired Corporation Company and, to the knowledge of the CompanySeller, each other party thereto, is enforceable in accordance with its terms against the applicable Acquired Company, and to the knowledge of Seller, each other party thereto and is in full force and effect, except as may be limited by subject to any bankruptcy, insolvency, moratorium and reorganization, moratorium, fraudulent transfer or other similar applicable law affecting Laws, now or hereafter in effect, relating to or limiting creditors’ rights generally and by to general principles of equityequity (regardless of whether such enforceability is considered in a proceeding in equity or at Law). No Neither the applicable Acquired Corporation hasCompany nor, and to the knowledge of the CompanySeller, none of the any other parties thereto haveparty thereto, violated is in default under any material respect any provision of, or committed or failed to perform any actMaterial Contract, and no event event, occurrence, condition or condition existsact has occurred that, which with or without the giving of notice, the lapse of time or both would constitute a material default, under the provisions happening of any Material Contractother event or condition, except would become a default or event of default by such Acquired Company or, to the knowledge of Seller, any other party thereto, that in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in have a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Membership Interest Purchase and Sale Agreement (Legacy Reserves Inc.), Membership Interest Purchase and Sale Agreement (Legacy Reserves Lp)
Contracts. (aSection 2(k) Except as set forth in Part 3.9 of the Company Disclosure ScheduleSchedule lists the following contracts, as agreements, and other written arrangements (other than with advertisers for the sale of air time) to which the date of this Agreement, neither the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined or group of related written arrangements) for the lease of personal property from or to third parties providing for lease payments in Item 601(b)(10) excess of Regulation S-K of the Exchange Act)$1,000 per year;
(ii) pursuant to which the Acquired Corporations any written arrangement (taken as a wholeor group of related written arrangements) received revenues for the fiscal year ended September 27purchase or sale of supplies, 2014products, or is reasonably expected to receive revenues in other personal property or for the furnishing or receipt of services which either calls for performance over a future annual period, in excess period of more than one year or involves more than the sum of $10,000,0001,000;
(iii) pursuant to which the Acquired Corporations (taken as any written arrangement concerning a whole) made expenditures for the fiscal year ended September 27, 2014, partnership or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000joint venture;
(iv) evidencing any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $1,000 or under which it has imposed (or may impose) a capital expenditure in excess Security Interest on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any written arrangement concerning confidentiality or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the worldnoncompetition;
(vi) relating to any written arrangement with any of its employees in the nature of a collective bargaining agreement, consulting agreement, employment agreement, or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000severance agreement;
(vii) that is any written arrangement under which the consequences of a default or termination could have an Inbound License adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations, or Outbound License, in each case, that either (A) grants exclusive rights to future prospects of the Seller or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000the Stations;
(viii) (A) imposing onany arrangement with any third party under which it has created, incurred, assumed, or granting to, guaranteed an Acquired Corporation any future minimum take-or-pay requirements obligation to provide advertising or air time in an amount in excess of $100,000, 1000 (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person"Advertising Contract"); or
(ix) any collective bargaining agreement other written arrangement (or other Contract with group of related written arrangements) either involving more than $5,000 or not entered into in the Ordinary Course of Business. Other than Advertising Contracts, the Seller has delivered to the Buyer a labor organization or works council representing any correct and complete copy of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described each written arrangement listed in Section 3.9(a), whether or not set forth in Part 3.9(a2(k) of the Company Disclosure ScheduleSchedule (as amended to date). Other than Advertising Contracts, with respect to each written arrangement so listed: (A) the written arrangement is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludinglegal, for the avoidance of doubtvalid, early termination)binding, all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party theretoenforceable, and in full force and effect; (B) the written arrangement will continue to be legal, except as may be limited by bankruptcyvalid, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation hasbinding, and enforceable and in full force and effect on identical terms following the Closing (if the arrangement has not expired according to the knowledge of the Company, none of the other parties thereto have, violated its terms); (C) no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions written arrangement; and (D) no party has repudiated any provision of the written arrangement. The Seller is not a party to any Material Contractverbal contract, except in each case for those violations and defaults agreement, or other arrangement which, individually or in the aggregateif reduced to written form, would not reasonably be expected required to result be listed in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any Section 2(k) of the foregoing. The Company has made available to Parent or Parent’s Representatives in Disclosure Schedule under the Data Room prior to the date terms of this Agreement a complete and correct copy (including any material amendmentSection 2(k). To the Knowledge of Seller, modificationno advertiser of the Stations has indicated within the past year that it will stop, extension or renewal with respect thereto) of each Material Contractdecrease the rate of, buying services from them.
Appears in 2 contracts
Sources: Program Service and Time Brokerage Agreement (Cumulus Media Inc), Program Service and Time Brokerage Agreement (Cumulus Media Inc)
Contracts. (a) Except as set forth in Part 3.9 Schedule 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company Disclosure Schedule, is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than 12 months;
(ii) pursuant to any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves more than the sum of $50,000, or (C) in which the Acquired Corporations (taken as Company has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a whole) received revenues for the fiscal year ended September 27, 2014, minimum quantity of goods or is reasonably expected services or has agreed to receive revenues in purchase goods or services exclusively from a future annual period, in excess of $10,000,000certain party;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation andwhich, to the knowledge of the Company, each establishes a partnership or joint venture;
(iv) other than the Bridge Notes, any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate, as defined in Rule 12b-2 under Exchange Act, thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Company to indemnify any other party theretothereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business; and
(xi) any agreement, other than as contemplated by this Agreement, relating to the sales of securities of the Company to which the Company is a party.
(b) The Company has delivered or made available to the Parent a complete and accurate copy of each agreement listed in Schedule 2.13 of the Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Schedule 2.13 of the Disclosure Schedule: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, except valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as may be limited by bankruptcyin effect immediately prior to the Closing; and (iii) the Company is not nor, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the is any other parties thereto haveparty, violated in any material respect any provision breach or violation of, or committed or failed to perform default under, any actsuch agreement, and no event or condition existshas occurred, which with or without is pending or, to the knowledge of the Company, is threatened, which, after the giving of notice, with lapse of time time, or both otherwise, would constitute a material defaultbreach or default by the Company or, under to the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any knowledge of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including Company, any material amendment, modification, extension or renewal with respect thereto) of each Material Contractother party under such contract.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Anvex International, Inc.), Merger Agreement (Dynastar Holdings, Inc.)
Contracts. (a) All material Contracts (collectively herein called the “Company Contracts” and individually a “Company Contract”) to which a Target Company is a party, that are used in the Business are listed on Section 4.12(a) of the Disclosure Schedule. In addition, Section 4.12(a) of the Disclosure Schedule includes:
(i) any Contracts with customers pursuant to which a Target Company gathers, processes, treats, fractionates, transports, stores, sells or purchases Hydrocarbons or the products therefrom or water, or provides services related thereto;
(ii) any Contracts for the construction of gathering or other pipeline systems or processing, fractionation or storage facilities other than any such Contracts requiring aggregate payments of less than $250,000 or which are terminable by the applicable Target Company on sixty (60) days’ notice or less without payment by any Target Company or any penalty;
(iii) each Contract that constitutes a pipeline interconnect agreement or a facility operating agreement;
(iv) any Contracts (A) for the purchase or sale of any asset, equipment, supplies, goods or property or provision of any service or (B) that grant a right or option to purchase or sell any asset or property or receive services other than, in each case, any such Contracts requiring aggregate payments of less than $250,000;
(v) any Contracts providing for the lease of any item or items of personal property with annual rental expense under such lease in excess of $250,000 other than any such Contracts which are terminable by the applicable Target Company on sixty (60) days’ notice or less without payment by a Target Company or any penalty;
(vi) any Contracts under which a Target Company has created, incurred, assumed or guaranteed any outstanding Debt;
(vii) any Contracts between (A) a Target Company, on the one hand, and any current or former employee, officer, manager, member or Affiliate of a Target Company, on the other hand, (B) a Target Company and any Employee, or (C) a Target Company and one or more of the Members or any of their respective Employees;
(viii) any collective bargaining Contracts;
(ix) any outstanding futures, swap, collar, put, call, floor, cap, option, hedging, forward sale or other derivative Contracts involving Hydrocarbons or other commodity sales or trading;
(x) any partnership, joint venture, strategic alliance or limited liability company agreements;
(xi) except as contemplated by clauses (i) and (ii) above, any sales, distribution or other similar agreement providing for the sale by any Target Company of materials, supplies, goods, services, equipment or other assets that provides for annual payments to such Target Company of $250,000 or more;
(xii) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by a Target Company of any operating business or equity interests of any other Person other than the MHA Acquisition;
(xiii) any Contract under which a Target Company has made advances or loans or payments to any other Person;
(xiv) any material management Contract or any material Contract with independent contractors or consultants (or similar arrangements) that are not cancelable without penalty or further payment and on not more than thirty (30) days’ notice;
(xv) any employment or consulting agreement or indemnification agreement with any officers, managers, equityholders, employees or agents; and
(xvi) any other Contract not described in the foregoing clauses (i) through (xvi) pursuant to which the Company has future liability in excess of $250,000 for any year or $1,000,000 in the aggregate and that cannot be terminated by the Company on not more than sixty (60) days’ notice without payment or penalty.
(b) Except as set forth in Part 3.9 Section 4.12(b) of the Company Disclosure Schedule, as of the date of this Agreement, neither the all Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual periodContracts are valid and binding, in excess of $10,000,000;
(iii) pursuant to which full force and effect and enforceable against the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire parties thereto in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effectrespective terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and or other similar applicable law laws affecting or relating to the enforcement of creditors’ rights generally and by the application of general principles of equity (regardless of whether that enforceability is considered in a Proceeding at law or in equity). No Acquired Corporation has, and to the knowledge Except as set forth in Section 4.12(b) of the CompanyDisclosure Schedule, none of the other parties thereto haveeach Target Company has performed, violated in all material respects, all obligations and is not in breach or default, in any material respect respect, under any provision ofCompany Contract. Except as set forth in Section 4.12(b) of the Disclosure Schedule, to the Company’s Knowledge, no event has occurred, which after notice or lapse of time, or committed or failed to perform any actboth, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material defaultdefault by a Target Company under any Company Contract or, under to the provisions Company’s Knowledge, any other party to any Company Contract.
(c) Except as set forth in Section 4.12(c) of the Disclosure Schedule, and except for this Agreement, no Target Company is a party to, and the Properties are not subject to any Contract that:
(i) prohibits a Target Company from competing in any line of business or in any geographic area or from soliciting or hiring any person with respect to employment;
(ii) requires a Target Company to acquire (by merger, purchase of stock or assets or otherwise) any operating business or material assets or equity interests of any Material ContractPerson;
(iii) provides for the deferred payment of any purchase price including any “earnout” or other contingent fee management;
(iv) grants to a third Person a right of first refusal, except option, preferential right or similar right to acquire Properties or the Business or any portion thereof;
(v) grants “most favored nation” pricing to a customer or counterparty;
(vi) would require a payment to be made by a Target Company at or following the Closing as a result of the consummation of the transactions contemplated hereby;
(vii) involves a prepayment by a counterparty to a Target Company for services to be performed by such Target Company following the Closing; or
(viii) creates Debt for which a Target Company could have liability following the Closing Date.
(d) Except as set forth in each case for those violations and defaults which, individually or in Section 4.12(d) of the aggregate, would not reasonably be expected to result in a Company Material Adverse EffectDisclosure Schedule, and except for this Agreement, no Acquired Corporation has received written notice of Target Company is a party to, and the Properties are not subject to, any Contract between a Target Company and a Member or any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contractits Affiliates.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Crestwood Midstream Partners LP)
Contracts. (a) Except as set forth in Part 3.9 Section 2.15 of the Company Disclosure Schedule, as of Schedule lists the date of this Agreement, neither following written arrangements (including without limitation written agreements) to which the Company nor any Subsidiary of the Company Seller is a party to or is bound by any Contractparty:
(i) that is a “material contract” any written arrangement (as such term is defined in Item 601(b)(10or group of related written arrangements) for the lease of Regulation S-K of the Exchange Act)personal property from or to third parties involving more than $25,000 per year;
(ii) pursuant to any written arrangement (or group of related written arrangements) for the purchase or sale of raw materials, commodities, supplies, products or other personal property (including without limitation any written arrangement in which the Acquired Corporations (taken as Seller has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to any products or territory, has agreed to purchase a whole) received revenues for minimum quantity of goods or has agreed to purchase goods exclusively from a certain party), involving more than $100,000 during the fiscal year ended September 27, 2014, most recent twelve months or is reasonably expected to receive revenues in a future annual period, involving an obligation in excess of $10,000,000100,000 to be performed after the Closing;
(iii) pursuant to any written arrangement involving more than $100,000 (or group of related written arrangements) for the furnishing or receipt of services (including without limitation any written arrangement in which the Acquired Corporations (taken as Seller has agreed to purchase a whole) made expenditures for the fiscal year ended September 27, 2014, minimum quantity of services or is reasonably expected has agreed to make expenditures in purchase services exclusively from a future annual period, in excess of $2,500,000certain party);
(iv) evidencing any written arrangement establishing a capital expenditure in excess of $2,500,000partnership or joint venture;
(v) containing a covenant prohibiting any written arrangement (or restricting any Acquired Corporation from competing in any business or geographic areagroup of related written arrangements) under which it has created, incurred, assumed, or from soliciting customers guaranteed (or employeesmay create, incur, assume, or otherwise restricting any Acquired Corporation from carrying guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 per year or under which it has imposed (or may impose) a Security Interest on any business anywhere in the worldof its assets, tangible or intangible;
(vi) relating to any written arrangement concerning confidentiality or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000noncompetition;
(vii) that is an Inbound License any written arrangement under which the consequences of a default or Outbound Licensetermination, in each caseany director, that either (A) grants exclusive rights officer or member of management of the Seller has reason to believe, could have a material adverse effect on the assets, business, financial condition, results of operations or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess future prospects of $250,000;the Seller; and
(viii) any written arrangement (or group of related written arrangements) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements not described (without regard to dollar amount) in excess of $100,000, paragraphs (i) through (vii) above and (B) granting “most favored nation,” “most favored customer” either involving more than $50,000 or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts not entered into in the ordinary course Ordinary Course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract with a labor organization or works council representing any of its employees or any other similar ContractBusiness.
(b) Each contract, arrangement, commitment or understanding The Seller has delivered to the Buyer a correct and complete copy of each written arrangement (as amended to date) listed in Section 2.15 of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) of the Company Disclosure Schedule. With respect to each written arrangement so listed: (i) the written arrangement is legal, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excludingvalid, for the avoidance of doubt, early termination), all of the Material Contracts are valid binding and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, enforceable and in full force and effect, ; (ii) the written arrangement is assignable by the Seller to the Buyer without the consent or approval of any party (except as may set forth in Section 2.15 of the Disclosure Schedule) and will continue to be limited by bankruptcylegal, insolvencyvalid, moratorium binding and other similar applicable law affecting creditors’ rights generally enforceable and by general principles of equity. No Acquired Corporation has, in full force and effect immediately following the Closing in accordance with the terms thereof as in effect prior to the Closing; and (iii) to the knowledge of the CompanySeller, none of the other parties thereto have, violated no party is in any material respect any provision of, breach or committed or failed to perform any actdefault, and no event or condition exists, has occurred which with notice or without notice, lapse of time or both would constitute a material defaultbreach or default or permit termination, modification, or acceleration, under the provisions of written arrangement. The Seller is not a party to any Material Contractoral contract, except in each case for those violations and defaults agreement or other arrangement which, individually or in the aggregateif reduced to written form, would not reasonably be expected required to result be listed in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any Section 2.15 of the foregoing. The Company has made available to Parent or Parent’s Representatives in Disclosure Schedule under the Data Room prior to the date terms of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractSection 2.15.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Dynatech Corp), Asset Purchase Agreement (Telxon Corp)
Contracts. (a) Except as set forth in Part 3.9 Section 3.10 of the Company Disclosure ScheduleLetter lists each of the following Contracts which the Company or any Subsidiary, as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contractby:
(i) that is a “material contract” any Contract (as such term is defined in Item 601(b)(10other than any Contract solely between the Company and any of its Subsidiaries) of Regulation S-K of the Exchange Act);
(ii) relating to outstanding indebtedness for borrowed money pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is has an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation outstanding principal amount in excess of $250,000;
(viiiii) any Contract relating to a security interest imposed on any Vessel or other asset or property of the Company or any of its Subsidiaries, other than Permitted Liens;
(Aiii) imposing onwith respect to any joint venture, partnership or granting toother similar agreement or arrangement with a third party, an Acquired Corporation any future minimum take-or-pay requirements Contract that relates to the formation, creation, operation, management or control of such joint venture, partnership or similar agreement or arrangement;
(iv) any Contract that involves or would reasonably be expected to involve aggregate payments by or to the Company or any Subsidiary in excess of $100,000250,000 in any twelve-month period;
(v) any Contract that (A) would limit the freedom of the Company or any Subsidiary to compete in any line of business or with any person or in any area after the Closing, (B) granting contains exclusivity obligations or restrictions that would be binding on the Company or any Subsidiary after the Closing or (C) provides for a “most favored nation,nations” “most favored customer” pricing status for any party thereto;
(vi) any Contract relating to any material interest rate, derivatives or hedging transaction;
(vii) any Contract with any supplier of or for the furnishing of services to the Company or any of its Subsidiaries involving consideration of more than $250,000 over its remaining term (including any automatic extensions thereto);
(viii) any ship management agreement, contract of affreightment, financial lease (including any sale/leaseback agreement or similar status arrangement) or charter (time, bareboat or otherwise) with respect to any PersonVessel, and Section 3.10(a)(viii) of the Company Disclosure Letter sets forth the classification of each such charter as time, bareboat or other;
(Cix) granting any type Contract (including any Contract including an option) for or relating to the purchase or sale of exclusive rights to any Person, Vessel or other vessel (other than sales representationany such Contract under which the Company and the Subsidiaries have no continuing obligations, distributionliabilities, licensing and similar contracts entered into rights or options);
(x) any Contract under which the Company or any Subsidiary has directly or indirectly guaranteed liabilities or obligations of any person (in each case other than endorsements for the purpose of collection in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or);
(ixxi) any collective bargaining agreement Contract that prohibits the payment of dividends or other Contract with a labor organization distributions in respect of the share capital of the Company or works council representing any Subsidiary, prohibits the pledging of the share capital of the Company or any Subsidiary or prohibits the issuance of any guarantee by the Company or any Subsidiary;
(xii) any effective power of attorney granted by the Company or any of its employees or Subsidiaries other than those granted to any other similar Contract.
(b) Each contract, arrangement, commitment or understanding of the type required to be described in Section 3.9(a), whether or not set forth in Part 3.9(a) existing director of the Company Disclosure Scheduleor any existing director of a Subsidiary;
(xiii) any agreement under which the Company or any Subsidiary provided loans or advanced money to any other person (other than intercompany indebtedness or arrangements); and
(xiv) any Contract between the Company or any Subsidiary, is referred to herein as a “Material Contract.” Except for Material Contracts that expire in accordance with their terms during on the Pre-Closing Period (excludingone hand, for the avoidance of doubtand any current or former director, early termination)officer, all employee, independent contractor or consultant of the Material Contracts are valid and binding Company or any Subsidiary, on the applicable Acquired Corporation andother hand, to the knowledge of the Companyincluding any Contract that contains restrictive covenants prohibiting such person from taking certain actions, each other party theretoincluding non-competition, and in full force and effectnon-solicitation, except as may be limited by bankruptcyno-hire, insolvencynon-disparagement or non-disclosure restrictions but not including any Company Benefit Plan, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in under which there continues to be any obligation by any party to the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice other as of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material ContractAgreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (DHT Holdings, Inc.), Share Purchase Agreement (DHT Holdings, Inc.)
Contracts. (a) Except as set forth in Part 3.9 Section 3.11(a) of the Company Merger Partner Disclosure Schedule, Schedule lists the following agreements (written or oral) to which Merger Partner or any of its Subsidiaries is a party as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $150,000 per annum or having a “material contract” (as such remaining term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act)longer than six months;
(ii) pursuant to which any agreement (or group of related agreements) that is not terminable without cause by Merger Partner with less than 120 days notice without penalty, including the Acquired Corporations (taken as a whole) received revenues payment of any termination fee or refund of amounts previously received, and that is for the fiscal year ended September 27purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, 2014(B) which involves an aggregate of more than $150,000 or (C) in which Merger Partner or any of its Subsidiaries has granted manufacturing rights, “most favored nation” pricing provisions or is reasonably expected marketing or distribution rights relating to receive revenues in any products or territory or has agreed to purchase a future annual period, in excess minimum quantity of $10,000,000goods or services or has agreed to purchase goods or services exclusively from a particular party;
(iii) pursuant to which any agreement concerning the Acquired Corporations (taken as establishment or operation of a whole) made expenditures for the fiscal year ended September 27partnership, 2014, joint venture or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000limited liability company;
(iv) evidencing any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $150,000 or under which it has imposed (or may impose) a capital expenditure in excess Lien on any of $2,500,000its assets, tangible or intangible;
(v) containing a covenant prohibiting any agreement for the disposition of any significant portion of the assets or restricting business of Merger Partner or any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere of its Subsidiaries (other than sales of products in the worldOrdinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vi) relating to any employment or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000consulting agreement;
(vii) that is any agreement involving any current or former officer, director or stockholder of Merger Partner or an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000Affiliate thereof;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in agreement under which the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements consequences of a specified good default or service from any Person; ortermination would reasonably be likely to have a Merger Partner Material Adverse Effect;
(ix) any collective bargaining agreement which contains any provisions requiring Merger Partner or other Contract with a labor organization or works council representing any of its employees Subsidiaries to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any agreement that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of Merger Partner or any of its Subsidiaries or Public Company or any of its Subsidiaries as currently conducted and as currently proposed to be conducted;
(xi) any agreement under which Merger Partner or any of its Subsidiaries is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the market or line of business;
(xii) any agreement under which Merger Partner or any of its Subsidiaries has licensed any material Intellectual Property to or from any third party (excluding currently-available, off-the-shelf software programs that are licensed by Merger Partner or any of its Subsidiaries pursuant to “shrink wrap” licenses under which aggregate fees and royalties paid to the licensor do not exceed $50,000 annually);
(xiii) any agreement that would entitle any third party to receive a license or any other similar Contractright to intellectual property of Public Company or any of Public Company’s Affiliates following the Closing; and
(xiv) any other agreement (or group of related agreements) (A) involving more than $150,000 or (B) not entered into in the Ordinary Course of Business.
(b) Each contract, arrangement, commitment Merger Partner has provided or understanding made available to Public Company a complete and accurate copy of each agreement listed in Section 3.10 or Section 3.11 of the type required Merger Partner Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be described legal, valid, binding and enforceable and in Section 3.9(a), whether or not set forth in Part 3.9(a) of full force and effect immediately following the Company Disclosure Schedule, is referred to herein as a “Material Contract.” Except for Material Contracts that expire Closing in accordance with their the terms during thereof as in effect immediately prior to the Pre-Closing Period Closing; and (excludingiii) neither Merger Partner nor any of its Subsidiaries nor, to the knowledge of Merger Partner, any other party, is in breach or violation of, or default under, any such agreement, and no event has occurred, is pending or, to the knowledge of Merger Partner, is threatened, which, with or without notice or lapse of time, or both, would constitute a breach, violation or default by Merger Partner or any of its Subsidiaries or, to the knowledge of Merger Partner, any other party under such agreement, except for breaches, violations or defaults that, individually or in the avoidance aggregate, have not had, and are not reasonably likely to have, a Merger Partner Material Adverse Effect. Neither Merger Partner nor any of doubtits Subsidiaries has received any notice in writing from any other party, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of Merger Partner, no party has threatened, to terminate, cancel, fail to renew or otherwise materially modify any such agreements the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles loss of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not is reasonably be expected likely to result in have a Company Merger Partner Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 2 contracts
Sources: Merger Agreement (Cornerstone BioPharma Holdings, Inc.), Merger Agreement (Critical Therapeutics Inc)
Contracts. (a) Except as set forth in Part 3.9 Section 4.13 of the Company Disclosure ScheduleLetter lists all the Contracts and arrangements of the following types to which any of the Acquired Companies or any of the Subsidiaries is a party or by which any of them, any of their respective assets or properties or the Acquired Stock is, or will by operation of this Agreement be, bound or liable as of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
hereof: (i) any Contract or arrangement of any nature which involves an outstanding obligation or liability of more than 150,000 English pounds sterling per annum, except Contracts which are terminable by one of the Acquired Companies or one of the Subsidiaries, as the case may be, without penalty on no more than thirty (30) days' notice; (ii) any Contract or arrangement with a sales representative, manufacturer's representative, distributor, dealer, broker, sales agency, advertising agency or other Person that is a “material contract” (as such term is defined engaged in Item 601(b)(10) of Regulation S-K sales, distributing or promotional activities and that transacted business with any of the Exchange Act);
Acquired Companies or Subsidiaries during the year ended December 29, 1996 in an amount in excess of 150,000 English pounds sterling or where transacted business in the year ending December 31, 1997 would be likely to exceed 150,000 English pounds sterling; (iiiii) any Contract or arrangement (including indentures, credit agreements, loan agreements, notes, mortgages, or security agreements) pursuant to which any of the Acquired Corporations Companies or any of the Subsidiaries has made or will make loans or advances, or has or will have incurred debt or become a guarantor or surety or pledged its credit on or otherwise become responsible with respect to any undertaking of another (taken as a whole) received revenues except for the fiscal year ended September 27, 2014, negotiation or is reasonably expected to receive revenues collection of negotiable instruments in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere transactions in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee ordinary course of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound Licensebusiness), in each case, that either case other than (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000intercompany debt, (B) granting “most favored nation,” “most favored customer” debts or similar status to any Person, other obligations under the Senior Credit Agreement and (C) granting debt not exceeding 150,000 English pounds sterling; (iv) any lease of personal property requiring payments in excess of 150,000 English pounds sterling in any one year, or any lease of real property in excess of 10,000 English pounds sterling per year; (v) any Contract or arrangement involving any restrictions with respect to the geographical area of operations or scope or type of exclusive rights business of any of the Acquired Companies or any of the Subsidiaries; (vi) any power of attorney or agency agreement or arrangement with any Person pursuant to which such Person is granted the authority to act for or on behalf of any Person, of the Acquired Companies or any of the Subsidiaries other than sales representation, distribution, licensing and similar contracts (i) any such agreement entered into in the ordinary course of business the Business and that relate solely related to customs activities; and (ii) any such agreement entered into in the Company’s publishing business and do not relate to ordinary course of the Company’s book manufacturing businessBusiness with any sales representative, manufacturer's representative, distributor, dealer or similar agent; (Dvii) requiring an Acquired Corporation to purchase all of its requirements any Contract or arrangement entered into other than by way of a specified good or service from any Person; or
(ix) any collective bargaining agreement or other Contract bargain at arms length which is with a labor organization or works council representing any of its employees or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding an Affiliate of the type required to be described in Section 3.9(aGuarantor (other than the Acquired Companies or Subsidiaries); and (viii) Any Contract or arrangement by which it is a member of a joint venture, whether consortium, partnership or not set forth in Part 3.9(a) of the Company Disclosure Schedule, is referred to herein as a “Material Contractassociation.” Except for Material Contracts that expire in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination), all of the Material Contracts are valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium and other similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, and to the knowledge of the Company, none of the other parties thereto have, violated in any material respect any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a material default, under the provisions of any Material Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, and no Acquired Corporation has received written notice of any of the foregoing. The Company has made available to Parent or Parent’s Representatives in the Data Room prior to the date of this Agreement a complete and correct copy (including any material amendment, modification, extension or renewal with respect thereto) of each Material Contract.
Appears in 1 contract
Contracts. (a) Except as set Schedule 3.22(a) sets forth in Part 3.9 a list of all Contracts to which the Company is a party or by which the Company, the Acquired Business or any of the Company Disclosure Schedule, Assets is bound as of the date hereof including:
(1) any Contract for the Company’s provision of engineering or other services related to the Acquired Business;
(2) any continuing Contract for management or consulting services or services of independent contractors or subcontractors;
(3) any Contract that expires more than one year after the date of this Agreement and any Contract that may be renewed at the option of any person other than the Company so as to expire more than one year after the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to or is bound by any Contract:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);
(ii) pursuant to which the Acquired Corporations (taken as a whole) received revenues for the fiscal year ended September 27, 2014, or is reasonably expected to receive revenues in a future annual period, in excess of $10,000,000;
(iii) pursuant to which the Acquired Corporations (taken as a whole) made expenditures for the fiscal year ended September 27, 2014, or is reasonably expected to make expenditures in a future annual period, in excess of $2,500,000;
(iv) evidencing a capital expenditure in excess of $2,500,000;
(v) containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, or from soliciting customers or employees, or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the world;
(vi) relating to or evidencing Indebtedness, including any guarantee of Indebtedness by the Company or any Subsidiary of the Company, in excess of $5,000,000;
(vii) that is an Inbound License or Outbound License, in each case, that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate payments to or from an Acquired Corporation in excess of $250,000;
(viii) (A) imposing on, or granting to, an Acquired Corporation any future minimum take-or-pay requirements in excess of $100,000, (B) granting “most favored nation,” “most favored customer” or similar status to any Person, (C) granting any type of exclusive rights to any Person, other than sales representation, distribution, licensing and similar contracts entered into in the ordinary course of business and that relate solely to the Company’s publishing business and do not relate to the Company’s book manufacturing business, or (D) requiring an Acquired Corporation to purchase all of its requirements of a specified good or service from any Person; or
(ix4) any collective bargaining trust indenture, mortgage, promissory note, loan agreement or other Contract with a labor organization for the borrowing of money, any currency exchange, commodities or works council representing any of its employees other hedging arrangement or any other similar Contract.
(b) Each contract, arrangement, commitment or understanding leasing transaction of the type required to be described capitalized in Section 3.9(a)accordance with Cash Accounting Principles;
(5) any Contract for capital expenditures in excess of $5,000 (or, whether if applicable, the sterling or not set forth Euro equivalent) in Part 3.9(athe aggregate;
(6) any Contract limiting the freedom of the Company Disclosure Scheduleto engage in any line of business or to compete with any other Person, is referred to herein or any confidentiality, secrecy or non- disclosure contract or any contract that may be terminable as a “Material result of the Shareholder’s status as a competitor of any party to such contract;
(7) any Contract pursuant to which the Company is a lessor of any Tangible Personal Property, pursuant to which payments in excess of $5,000 remain outstanding;
(8) any Contract with an affiliate;
(9) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the Liabilities of any other Person other than customary customer agreements made in the ordinary course of the Acquired Business;
(10) any employment Contract, arrangement or policy (including any collective bargaining contract or union agreement) that may not be immediately terminated without financial notifications or penalty (or any augmentation or acceleration of benefits);
(11) any Contract providing for a joint venture or partnership with any other Person;
(12) any oral contract, true and correct summaries of which have been provided to the Company; and
(13) any Contract that is otherwise in any way material to the Assets and/or the Acquired Business and is not described in any of the categories specified in this Section 3.22(a).” Except for Material Contracts that expire
(b) The Company has performed, in accordance with their terms during the Pre-Closing Period (excluding, for the avoidance of doubt, early termination)all material respects, all of the Material obligations required to be performed by Company and, to Shareholder’s Knowledge, is entitled to all benefits under, and, to Shareholder’s Knowledge, is not alleged to be in default in respect of any Assigned Contract. Each of the Assigned Contracts are is valid and binding on the applicable Acquired Corporation and, to the knowledge of the Company, each other party thereto, and in full force and effect, except as may be limited by effect (subject to bankruptcy, insolvencyreorganization, moratorium receivership and other similar applicable law laws affecting creditors’ rights generally and by general applicable equitable principles of (whether considered in a proceeding at law or in equity. No Acquired Corporation has), and except as disclosed on Schedule 3.22(b), to the knowledge Shareholder’s Knowledge, there exists no default or event of default or event, occurrence, condition or act, with respect to the Company, none of or with respect to the other parties thereto havecontracting party, violated in any material respect any provision ofthat, or committed or failed to perform any act, and no event or condition exists, which with or without the giving of notice, the lapse of time or both would constitute a material default, under the provisions happening of any Material Contract, except in each case for those violations and defaults which, individually other event or in the aggregatecondition, would not reasonably be expected to result in become a Company Material Adverse Effect, and no Acquired Corporation has received written notice default or event of default under any of the foregoingAssigned Contract. The Company has made available not received written or oral notice of cancellation, modification or termination of any Assigned Contract. The Company does not have actual notice that one or more of the parties to Parent any Assigned Contract intends to terminate or Parent’s Representatives in alter the Data Room prior to provisions thereof by reason of the transactions contemplated hereby. Since the date of this Agreement a complete and correct copy the latest balance sheet of the Company contained in the Financial Statements, except as set forth on Schedule 3.22(b), the Company has not waived any right under any Assigned Contract, amended or extended any Assigned Contract or failed to renew (including any material amendment, modification, extension or renewal received notice of termination or failure to renew with respect to) any Assigned Contract. True, correct and complete copies of all Assigned Contracts have been delivered to iGambit.
(c) [Intentionally Omitted].
(d) None of the Assigned Contracts was awarded to the Company as a result of (in whole or in part) the Company’s status as a minority-owned or disadvantaged business or similar status.
(e) All of the Assigned Contracts may be assigned to iGambit without obtaining the consent of any party thereto) of each Material Contract, other than to the extent specifically set forth on Schedule 3.22(e).
Appears in 1 contract