Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that: (i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole; (iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries; (iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company); (v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries); (vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company; (vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries; (viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions; (ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time; (x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty; (xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000; (xii) constitute collective bargaining agreements; (xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or (xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements. (b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 4 contracts
Samples: Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a4.13(a) of the Company Disclosure Letter sets forth a listSchedule lists, as of the date of this Agreement, each Contract that is of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts a type described below:
(i) any Contract to which the Company or any of its the Company Subsidiaries is a party or by relating to indebtedness for borrowed money in excess of $500,000;
(ii) any guarantee of any obligation for borrowed money in excess of $500,000 with respect to which the Company, Company or any of its the Company Subsidiaries is a guarantor;
(iii) any collective bargaining agreement to which the Company or any of the Company Subsidiaries is a party (collective, the “Company Union Contracts”);
(iv) any Contract to which the Company or any of the Company Subsidiaries is a party granting a right of first refusal, right of first offer or similar preferential right to purchase or acquire any of the Company’s or any of the Company Subsidiaries’ capital stock or assets;
(v) any Contract to which the Company or any of the Company Subsidiaries is a party limiting, restricting or prohibiting the Company or any of the Company Subsidiaries from conducting business anywhere in the United States or elsewhere in the world, or any Contract to which the Company or any of their respective properties the Company Subsidiaries is a party limiting the freedom of the Company or assets is bound (any of the Company Subsidiaries to engage in any line of business or to compete with any other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:Person;
(ivi) are any joint venture or partnership agreement to which the Company or any of the Company Subsidiaries is a party; and
(vii) any other Contract (including all amendments thereto) that would be required to be filed by the Company with the SEC as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken Act as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, other than this Agreement and the Rights Agreement Amendment. The Company has, prior to the date of this Agreement, delivered or made available to Parent and Merger Sub true and correct copies of all Contracts referred to clauses (i) through (vii) above (except, with respect to any such Contract, to the extent that the Company or the applicable Subsidiary is precluded or restricted from doing so by the terms of such Contract or by any confidentiality agreement to which the Company or such Company Subsidiary is a party or by which it is bound).
(b) With respect to each Material Contract is valid and binding on to which the Company or any Company Subsidiary is a party, (i) neither the Company nor any of the Company Subsidiaries has breached or is in default under, nor has any of them received written notice of breach or default under, such Contract, (ii) to the Company’s Knowledge, no other party to such Contract has breached or is in default of any of its Subsidiariesobligations thereunder, and (iii) such Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries and to the extent such Person is a party theretoCompany’s Knowledge, as applicable, and, to the Knowledge of the Company, each other party or parties thereto, and is in full force and effect, except where the failure in any such case for breaches, defaults or failures to be valid, binding, binding and legally enforceable or to be in full force and effect that would not constitute a Material Adverse Effectreasonably be expected to have, (ii) in the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constituteaggregate, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 4 contracts
Samples: Merger Agreement (North Pittsburgh Systems Inc), Merger Agreement (North Pittsburgh Systems Inc), Merger Agreement (Consolidated Communications Holdings, Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a4.13(a) of the Company Seller’s Disclosure Letter sets forth Schedules contains a listcomplete and correct list of all of the following Contracts, in effect as of the date of this Agreement, of all Material Contracts. For purposes of this Agreementto which a Transferred Entity is a party, “Material Contract” means all Contracts is bound by or subject to, or pursuant to which the Company or any of its Subsidiaries BGI Business is a party or by which conducted (the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:“Specified Contracts”):
(i) are any Contract for the placement, distribution or would be required sale of shares, units or other ownership interests of a Fund that is reasonably expected to be filed by the Company as provide for payments to, or provide for payments from, a “material contract” pursuant to Item 601(b)(10) Transferred Entity in excess of Regulation S-K under the Securities Act$5,000,000 in 2009;
(ii) relate any administration agreement or any other Contract for the provision of administrative services that is reasonably expected to provide for payments to, or provide for payments from a Transferred Entity in 2009 in excess of $10,000,000 and by its terms is not terminable without penalty by a Transferred Entity upon notice of 180 days or less;
(iii) any Contract, other than a Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or provide for payments from, a Transferred Entity in excess of $10,000,000 in 2009;
(iv) any Contract prohibiting or materially restricting the formation ability of any Transferred Entity to conduct its business, to engage in any business or management of operate in any geographical area or to compete with any Person;
(v) any Contract for any joint venture, partnershipstrategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or other similar agreement assets under management of any Affiliate of Parent or any Fund that is reasonably expected to account for revenue to the BGI Business in 2009 in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the business of the Company and its SubsidiariesTransferred Entities, taken as a whole;
(iiivi) provide any Contract relating to any Indebtedness of a Transferred Entity in an amount in excess of $5,000,000, other than: (A) any mortgage or similar Indebtedness secured by specific property owned by or on behalf of a Client; (B) any Indebtedness solely between Transferred Entities; or (C) any Indebtedness for which no Transferred Entity will be liable following the Closing;
(vii) any Contract (including any so-called take-or-pay or keep well agreements) under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any Transferred Entity in respect of the BGI Business that would reasonably be expected to be material to the Transferred Entities, taken as a whole, or (B) a Transferred Entity has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or Person (other than any Transferred Entity) in each case in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(ivviii) are any keepwell Contract that provides for earn-outs or other similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or contingent obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, that would reasonably be expected to result in each case involving liabilities or obligations annual payments in excess 2009 of $10,000,000 (other than any contracts under which the Company 5,000,000 or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)more;
(vix) have been any Contract entered into since January 1, 2017, and involve 2007 for the acquisition from another or disposition of a Person or disposition to another Person of capital stock or other equity interests of another Person or a division of a businessPerson, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, or for the avoidance acquisition or sale of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, productsany assets (including Intellectual Property), properties, equity interests or rights, other assets than any such sale or acquisition in the ordinary course of business or of suppliesany such sale or acquisition that would not reasonably be expected to be material to the Transferred Entities, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);taken as a whole; and
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) any BGI Affiliate Arrangement that will be in effect after the Company Closing.
(b) Seller has made available to Buyer prior to the date of this Agreement a complete and correct copy of each written Specified Contract (except in certain instances such Specified Contracts or any portions thereof have been withheld as described in Seller’s Disclosure Schedules or redacted) and accurate and complete descriptions of its Subsidiaries all material terms of each oral Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each (i) Specified Contract, (ii) Investment Advisory Arrangement which accounts for more than $1,000,000 of revenue to the BGI Business on an annualized basis and (iii) Contract that is reasonably expected to provide for payments to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees Transferred Entity in excess of $2,000,0001,000,000 in 2009 that contains key person provisions pertaining to employees of a Transferred Entity ((i), other than commercially available (ii) and (iii) being the “off-the-shelf” software licenses under which software Significant Contracts”) is licensed in full force and effect, and is valid and binding on the Transferred Entity that is a party thereto, and, to the Company Knowledge of Seller, on each other party thereto. There exists no breach or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company default of any material penalty, Significant Contract on the part of any Transferred Entity which (ywith or without notice or lapse of time or both) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected towould, individually or in the aggregate, preventreasonably be expected to be material to the Transferred Entities, materially delaytaken as a whole. No Transferred Entity has received any written notice of an intention to terminate, not to renew or materially impede to challenge the Company’s ability validity or enforceability of any Significant Contract, the termination, failure to consummate the Transactions renew or Parent’s ability to own and/or conduct the business challenge of the Company which would, individually or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the worldaggregate, other than Contracts that can reasonably be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any expected to be material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance ContractsTransferred Entities, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries taken as currently conducted, other than managing agency agreements or managing general underwriting agreementsa whole.
(bc) As of the date hereof, no Transferred Entity has entered into and is bound by or subject to any of the following:
(i) other than investment management and distribution Contracts entered into in the ordinary course of business consistent with past practice, any Contract providing for the indemnification of any Person with respect to liabilities, whether absolute, accrued, contingent or otherwise that would reasonably be expected to result in aggregate indemnification payments by a Transferred Entity in excess of $10,000,000;
(ii) other than Contracts entered into in the ordinary course of business, any type of Contract to cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any or all fees or expenses thereunder that in any such case would be material to the Transferred Entities, taken as a whole; or
(iii) other than Contracts entered into in the ordinary course of business consistent with past practice, any Contract requiring any Transferred Entity (A) to co-invest with any other Person, (B) to provide seed capital or similar investment or (C) to invest in any investment product, in each case in an amount in excess of $5,000,000 individually.
(d) Notwithstanding anything to the contrary contained in this Agreement, in no event shall Specified Contracts include any Investment Advisory Arrangement.
(e) Attached as Section 4.13(e) of the Seller’s Disclosure Schedules is a description of any “most favored nation” provision in any Investment Advisory Arrangement which provided revenue to Seller and its Affiliates in excess of (i) each Material Contract is valid $1,000,000 in 2008 for Investment Advisory Arrangement with U.S.-based clients and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) $5,000,000 in 2008 for all other Investment Advisory Arrangements.
(f) Attached as Section 4.13(f) of the Company Seller’s Disclosure Schedules is a description of any “key person” provision pertaining to employees of a Transferred Entity in any Contract that is reasonably expected to provide for payments to a Transferred Entity in excess of $10,000,000 in 2009.
(g) Seller has made available to Buyer a true and each complete copy of its Subsidiariesform of counterparty security lending (borrower default) indemnity Contract and its forms of cash fund capital support Contracts, and, in each case provided to the Knowledge certain funds and clients of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice securities lending or short-term cash businesses of the existence of any event or condition that constitutesBGI Business, or, after notice or lapse of time or both, will constitute, a default on the part and none of the Company or any of its Subsidiaries under any Material Contract, except where Contracts used by the Transferred Entities for such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under purposes materially deviates from such Material Contract, except as would not constitute a Material Adverse Effectstandard forms.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Barclays Bank PLC /Eng/), Stock Purchase Agreement (BlackRock Inc.), Stock Purchase Agreement (Barclays Bank PLC /Eng/)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a listAgreement, as of the date hereof, none of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its the Company Subsidiaries is a party to or bound by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
Contract (i) are or that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
Act (other than a Benefit Plan), (ii) relate to containing covenants binding upon the formation Company or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness Subsidiaries that materially restrict the ability of the Company or any of its Subsidiaries having an outstanding or committed amount equal Affiliates to compete in any business or in excess of $10,000,000any geographic area, (iii) with respect to a joint venture, limited liability company or partnership agreement or other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which or arrangement, or to the Company formation, creation or operation, management or control of any of its Subsidiaries has directly guaranteed any liabilities partnership or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a businessjoint venture, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business with any Person who is not an Affiliate of the Company and which arrangement is material to the Company and the Company Subsidiaries, taken as a whole, (iv) that limits or any of its Subsidiaries);
(vi) prohibit prohibits the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its the Company Subsidiaries, prohibit prohibits the pledging of the shares or capital stock of the Company or any Subsidiary of the Company Subsidiaries or prohibit prohibits the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) guarantees by the Company or any of its the Company Subsidiaries on less (other than ninety pursuant to applicable Law or Order), (90v) dayswhich provides for any guarantee of third party obligations, other than any guarantees by the Company of the Company Subsidiaries’ notice without payment obligations or guarantees by the Company Subsidiaries of the Company’s obligations, (vi) which relates to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect (other than this Agreement and confidentiality agreements in connection with any potential acquisition, divestiture, merger or similar transaction), or (vii) which provides for payments to be made to a third party by the Company or any Subsidiary of the Company Subsidiaries upon a change in control of any of them, including the Merger, except in the case of clauses (i) through (vi) for any (A) such Contract that may be cancelled without material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to penalty by the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company Subsidiaries upon notice of thirty (30) days or any of its Subsidiaries that less and (B) information technology Contracts. Each such Contract described in clauses (i) through (vii) is necessary for the conduct of the business of the Company and its Subsidiaries referred to herein as currently conducted, other than managing agency agreements or managing general underwriting agreementsa “Material Contract.”
(b) As of the date of this Agreement, (i) each Each Material Contract is valid and binding on the Company or any of its the Company Subsidiaries, to as the extent such Person is a party thereto, as applicablecase may be, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure for such failures to be valid, binding, valid and binding or to be in full force and effect as would not constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) . There is no breach or default under any Material Contracts by the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither or the Company nor any of its Subsidiaries and no event has received notice of occurred that, with the existence of any event or condition that constitutes, or, after notice or lapse of time or the giving of notice or both, will constitute, would constitute a breach or default on the part of thereunder by the Company or any of its Subsidiaries under any Material Contractthe Company Subsidiaries, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, in each case except as would not constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (American Financial Group Inc), Merger Agreement (National Interstate CORP), Merger Agreement (American Financial Group Inc)
Contracts. (aSchedule 2.1(x) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a listall oral or written contracts, as of the date of this Agreementagreements, of all Material Contracts. For purposes of this Agreementindentures, notes, bonds, loans, instruments, leases, commitments, or other arrangements or commitments (collectively, “Material Contract” means all Contracts Contracts”) to which the Company or any of its Subsidiaries is a party or by which the Companyit is bound with a value in excess of $75,000, in each case, of any of its Subsidiariesthe following types (collectively, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
the “Material Contracts”): (i) are Contracts with any current or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation former officer or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness director of the Company or any of its the Company’s Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000any other employment, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell non-competition, severance, consulting, or similar agreement under which the Company agreement; (ii) Contracts with any labor union or association representing any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations employee of the Company or any of its the Company’s Subsidiaries, in each case involving liabilities or obligations in excess ; (iii) Contracts for the sale of $10,000,000 (other than any contracts under which of the assets of the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary any of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or ’s Subsidiaries other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets than in the ordinary course of business or for the grant to any person of supplies, products, properties, any preferential rights to purchase any of their assets; (iv) joint venture agreements; (v) Contracts containing covenants of the Company or any of the Company’s Subsidiaries not to compete in any line of business or with any person in any geographical area; (vi) Contracts relating to the acquisition by the Company or any of the Company’s Subsidiaries of any operating business or the capital stock of any other assets that Person; (vii) Contracts relating to indebtedness; or (viii) Contracts granting any registration or similar right in respect of securities of the Company or any of the Company’s Subsidiaries. There have been made available to the Purchasers true and complete copies of all of the Material Contracts and there are obsolete, worn out, surplus, or no longer used or useful in other contracts material to the conduct of business of the Company or any of its Subsidiaries. Except as set forth on Schedule 2.1(x);
(vi) prohibit the payment of dividends or distributions in respect , all of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access Material Contracts and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, all other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or ’s Subsidiaries are in full force and effect would not constitute a Material Adverse Effectand are the legal, (ii) valid, and binding obligations of the Company and each of its and/or the Company’s Subsidiaries, andenforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to the Knowledge general principles of the Companyequity (regardless of whether enforcement is sought in a proceeding at law or in equity). Except as set forth on Schedule 2.1(x), any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its the Company’s Subsidiaries has received notice of the existence of is in default in any event material respect under any Material Contract or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part any other Contract of the Company or any of and its Subsidiaries under any Material ContractSubsidiaries, except where such default would not constitute a Material Adverse Effectnor, and (iv) there are no events or conditions that constitute, orto the Company’s knowledge, after notice or lapse of time or bothdue inquiry, will constitute a is any other party to any such Contract in default on the part of thereunder in any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectmaterial respect.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Sino Gas International Holdings, Inc.), Securities Purchase Agreement (Sino Gas International Holdings, Inc.), Securities Purchase Agreement (Sino Clean Energy Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a(w) Contracts executed by Parent or one of its subsidiaries on behalf of the Company Disclosure Letter sets forth or a list, as subsidiary of the date of this AgreementCompany, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all (x) Contracts the parties to which consist solely of Parent or any of its subsidiaries, on the one hand, and the Company or any of its Subsidiaries is a party subsidiaries, on the other hand, (y) the Transaction Agreements or by which (z) as set forth in Section 4.01(v) of the CompanyCompany Disclosure Schedule, neither the Company nor any of its Subsidiariessubsidiaries with respect to the Retained Business is, and none of the Retained Companies will be as of the Effective Time, a party to or bound by any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatthe following:
(i) are or would be required to be filed employment Contract that has an aggregate future liability in excess of $100,000 and is not terminable by one of the Company as Retained Companies by notice of not more than 60 days for a “material contract” pursuant to Item 601(b)(10) cost of Regulation S-K under the Securities Actless than $100,000;
(ii) relate covenant not to the formation compete (other than pursuant to any radius restriction contained in any lease, reciprocal easement or management of any joint venturedevelopment, partnershipconstruction, operating or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a wholeagreement);
(iii) provide for Indebtedness Contract with any current or former employee, officer or director of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, subsidiaries (other than any Indebtedness between or among any of the Company and any of its Subsidiariesemployment agreements covered by clause (i) above);
(iv) are any keepwell lease, sublease or similar agreement under which the Company or with any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 person (other than any contracts of the Retained Companies) under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary any of the CompanyRetained Companies is a lessor or sublessor of, or makes available for use to any person (other than the Retained Companies), (A) any property of the Retained Companies or (B) any portion of the premises otherwise occupied by any of the Retained Companies;
(v) have been entered into since January 1lease, 2017sublease or similar agreement with any person (other than any of the Retained Companies) under which (A) any of the Retained Companies is a lessee of, and involve the acquisition from another Person or disposition to another Person of capital stock holds or uses, any machinery, equipment, vehicle or other equity interests tangible personal property owned by any person or (B) any of another Person the Retained Companies is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by any of a businessthe Retained Companies, in each caseany such case which has an aggregate future liability or receivable, for aggregate consideration under such Contract as the case may be, in excess of $10,000,000 50,000 and is not terminable by one of the Retained Companies by notice of not more than 60 days for a cost of less than $50,000;
(excluding, vi) (A) continuing Contract for the avoidance future purchase of doubtmaterials, acquisitions supplies or dispositions equipment, (B) management, service, consulting or other similar type of investments made pursuant Contract or (C) advertising Contract, in any such case which has an aggregate future liability to any person (other than any of the Retained Companies) in excess of $50,000 and is not terminable by one of the Retained Companies by notice of not more than 60 days for a cost of less than $50,000;
(vii) material license, option or other Contract relating in whole or in part to the Investment GuidelinesIntellectual Property set forth in Section 4.01(u) of the Company Disclosure Schedule or other material trademarks or copyrights or computer software used primarily in con nection with the Retained Business as currently conducted (other than licenses for the use of readily available, off-the-shelf software);
(viii) Contract under which any of the Retained Companies has borrowed any money from, or of suppliesissued any note, productsbond, properties, debenture or other assets evidence of indebtedness to, any person (other than any of the Retained Companies) or any other note, bond, debenture or other evidence of indebtedness issued to any person (other than any of the Retained Companies);
(ix) Contract (including so-called take-or-pay or keepwell agreements) under which (A) any person (including any of the Retained Companies) has directly or indirectly guaranteed indebtedness, liabilities or obligations of any of the Retained Companies or the GBC Companies or (B) any of the Retained Companies has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person (in each case other than endorsements for the purpose of collection in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiariesbusiness);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or Contract under which any of its Affiliates from competing in the Retained Companies has, directly or indirectly, made any material line loan, advance, extension of credit or capital contribution to, or investment in, any person (other than any of the 43 39 Retained Companies and other than to officers and employees of the Retained Companies for travel, business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere relocation expenses in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any ordinary course of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penaltybusiness);
(xi) involve the retention mortgage, pledge, security agreement, deed of trust or other instrument granting a Lien upon any property of any independent contractor, consultant, or agency for of the provision of services to the Company with annualized fees in excess of $300,000Retained Companies;
(xii) constitute collective bargaining agreementsContract under which any of the Retained Companies is or may become obligated to indemnify any other person (other than any of the Retained Companies) or otherwise to assume any material liability with respect to liabilities relating to any current or former business of the Company, any of its subsidiaries or any predecessor person;
(xiii) involve programming agreement that has an aggregate future liability that the provision Retained Companies are obligated to pay in excess of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries$75,000; or
(xiv) provide for other Contract which has an aggregate future liability to any person (other than the outsourcing Retained Companies) in excess of any material function or part $75,000 and is not terminable by one of the business Retained Companies by notice of not more than 60 days for a cost of less than $75,000. Except as set forth in Section 4.01(v) of the Company or any of its Subsidiaries that is necessary for Disclosure Schedule and subject to obtaining the conduct of the business consents set forth in Section 4.01(d) of the Company and its Subsidiaries as currently conductedDisclosure Schedule, other than managing agency agreements or managing general underwriting agreements.
(ball Contracts listed in Section 4.01(v) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be Disclosure Schedule are valid, binding, or binding and in full force and effect would not constitute a Material Adverse Effect, (ii) and are enforceable by the Company and each of or its Subsidiaries, relevant subsidiary (and, to at the Knowledge Effective Time, will be enforceable by one of the Company, any other party thereto, has Retained Companies) in accordance with its terms. The Company and its subsidiaries have performed all material obligations required to be performed by it them to date under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Contracts listed in the Company nor any of its Subsidiaries has received notice of Disclosure Schedule and they are not (with or without the existence of any event or condition that constitutes, or, after notice or lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, will constitute, a default on to the part knowledge of the Company or Company, no other party to any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and the Contracts listed in the Company Disclosure Schedule is (iv) there are no events with or conditions that constitute, or, after notice or without the lapse of time or the giving of notice, or both, will constitute a ) in breach or default on the part of in any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.material respect thereunder. 44 40
Appears in 3 contracts
Samples: Merger Agreement (Gaylord Entertainment Co), Merger Agreement (Westinghouse Electric Corp), Merger Agreement (Westinghouse Electric Corp)
Contracts. (a) Except as set forth in CNYF DISCLOSURE SCHEDULE 3.08(a), neither CNYF nor any CNYF Subsidiary is a party to or subject to: (i) any employment, consulting or severance contract or material arrangement with any past or present officer, director or employee of CNYF or any CNYF Subsidiary, except for this Agreement "at will" arrangements; (ii) any plan, material arrangement or contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar material arrangements for or with any past or present officers, directors or employees of CNYF or any CNYF Subsidiary; (iii) any collective bargaining agreement with any labor union relating to employees of CNYF or any CNYF Subsidiary; (iv) any agreement which by its terms limits the payment of dividends by CNYF; (v) any instrument evidencing or related to material indebtedness for borrowed money whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which CNYF or any CNYF Subsidiary is an obligor to any person, which instrument evidences or relates to indebtedness other than deposits, repurchase agreements, Federal Home Loan Bank of New York advances, bankers' acceptances, and each Contract filed as an exhibit "treasury tax and loan" accounts established in the ordinary course of business and transactions in "federal funds" or which contains financial covenants or other restrictions (other than those relating to the Filed SEC Documentspayment of principal and interest when due) which would be applicable on or after the Closing Date to Niagara Bancorp or any Niagara Bancorp Subsidiary; or (vi) any contract (other than this Agreement) limiting the freedom, Section 4.16(a) in any material respect, of the Company Disclosure Letter sets forth a list, CNYF or CSB to engage in any type of banking or bank-related business which CNYF is permitted to engage in under applicable law as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As True and correct copies of agreements, plans, contracts, arrangements and instruments referred to in Section 3.08(a), have been provided to Niagara Bancorp on or before the date of this Agreementhereof, (iare listed on CNYF DISCLOSURE SCHEDULE 3.08(a) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or are in full force and effect would not constitute a Material Adverse Effect, on the date hereof and neither CNYF nor any CNYF Subsidiary (ii) the Company and each of its Subsidiaries, andnor, to the Knowledge knowledge of the CompanyCNYF, any other party theretoto any such contract, plan, arrangement or instrument) has performed materially breached any provision of, or is in default in any respect under any term of, any such contract, plan, arrangement or instrument. Except as set forth in the CNYF DISCLOSURE SCHEDULE 3.08(b), no party to any material contract, plan, arrangement or instrument will have the right to terminate any or all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence provisions of any event such contract, plan, arrangement or condition that constitutes, or, after notice or lapse of time or both, will constitute, instrument as a default on the part result of the Company execution of, and the transactions contemplated by, this Agreement. Except as set forth in CNYF DISCLOSURE SCHEDULE 3.08(b), none of the employees (including officers) of CNYF, possess the right to terminate their employment as a result of the execution of this Agreement. Except as set forth in CNYF DISCLOSURE SCHEDULE 3.08(b), no plan, contract, employment agreement, termination agreement, or similar agreement or arrangement to which CNYF or any CNYF Subsidiary is a party or under which CNYF or any CNYF Subsidiary may be liable contains provisions which permit an employee or independent contractor to terminate it without cause and continue to accrue future benefits thereunder. Except as set forth in CNYF DISCLOSURE SCHEDULE 3.08(b), no such agreement, plan, contract, or arrangement (x) provides for acceleration in the vesting of benefits or payments due thereunder upon the occurrence of a change in ownership or control of CNYF or any CNYF Subsidiary absent the occurrence of a subsequent event; or (y) requires CNYF or any CNYF Subsidiary to provide a benefit in the form of CNYF Common Stock or determined by reference to the value of CNYF Common Stock. Except as set forth in CNYF DISCLOSURE SCHEDULE 3.08(b), no such agreement, plan or arrangement with respect to officers or directors of CNYF, or to CNYF's knowledge, to its Subsidiaries employees, provides for benefits which will cause an "excess parachute payment" or the disallowance of a federal income tax deduction under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.IRC Section 280G.
Appears in 3 contracts
Samples: Merger Agreement (Cny Financial Corp), Merger Agreement (Cny Financial Corp), Merger Agreement (Cny Financial Corp)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) set forth in Part 3.9 of the Company Disclosure Letter sets forth a listSchedule, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which neither the Company or nor any Subsidiary of its Subsidiaries the Company is a party to or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatby any Contract:
(i) are or would be required to be filed by the Company as that is a “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Exchange Act);
(ii) relate pursuant to which the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, 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) provide pursuant to which the Acquired Corporations (taken as a whole) made expenditures for Indebtedness of the Company fiscal year ended September 27, 2014, or any of its Subsidiaries having an outstanding or committed amount equal is reasonably expected to or make expenditures in a future annual period, in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries2,500,000;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations evidencing a capital expenditure in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)2,500,000;
(v) have been entered into since January 1containing a covenant prohibiting or restricting any Acquired Corporation from competing in any business or geographic area, 2017or from soliciting customers or employees, and involve or otherwise restricting any Acquired Corporation from carrying on any business anywhere in the acquisition from another Person world;
(vi) relating to or disposition to another Person evidencing Indebtedness, including any guarantee of capital stock Indebtedness by the Company or other equity interests any Subsidiary of another Person the Company, in excess of $5,000,000;
(vii) that is an Inbound License or of a businessOutbound License, in each case, for that either (A) grants exclusive rights to or from an Acquired Corporation or (B) requires aggregate consideration under such Contract payments to or from an Acquired Corporation in excess of $10,000,000 250,000;
(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, acquisitions or dispositions of investments made pursuant to the Investment Guidelinesearly termination), or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business all of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Material Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is are valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, applicable Acquired Corporation and, to the Knowledge knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to as may be validlimited by bankruptcy, bindinginsolvency, or in full force moratorium and effect would not constitute a Material Adverse Effectother similar applicable law affecting creditors’ rights generally and by general principles of equity. No Acquired Corporation has, (ii) the Company and each of its Subsidiaries, and, to the Knowledge knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice none of the existence of 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 that constitutesexists, orwhich with or without notice, after notice or lapse of time or bothboth would constitute a material default, will constitute, a default on under the part provisions of the Company or any of its Subsidiaries under any Material Contract, except where such default in each case for those violations and defaults which, individually or in the aggregate, would not constitute reasonably be expected to result in a Company Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after Acquired Corporation has received written notice or lapse of time or both, will constitute a default on the part of any counterparty under such 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, except as would not constitute a Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (COURIER Corp)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, Subsidiaries or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, reinsurance or retrocession treaties or agreements, slips, binders, cover notes, notes or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, partnership or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,00025,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 25,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1June 30, 20172016, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 25,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, properties or other assets in the ordinary course of business or of supplies, products, properties, properties or other assets that are obsolete, worn out, surplus, surplus or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or Property, access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (xA) the Company or any of its Subsidiaries to a third Person or (yB) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,0005,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, Lease or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, consultants or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, delay or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) are investment management agreements with an investment manager or sub-advisor that is not an Affiliate of the Company;
(xi) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that which prevents the Company or any Affiliate of the Company from entering any material territory, market, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) 90 days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements; or
(xiii) are investment management agreements between AlphaCat Managers Ltd. or AlphaCat Capital Inc. as investment manager or sub-advisor, on the one hand, and any other party, on the other hand.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or and/or any of its Subsidiaries, Subsidiaries to the extent such Person is a party thereto, as applicable, and, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, binding or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, Effect and (iv) there are no events or conditions that which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (American International Group Inc), Merger Agreement (Validus Holdings LTD)
Contracts. (a) Except for this Agreement and each Contract those Contracts previously filed as an exhibit to with the Filed SEC Documentsby the Company, Section 4.16(a) 3.15 of the Company Disclosure Letter sets forth identifies each Company Contract that constitutes a listMaterial Contract (as defined below) (other than Material Contracts described in (a)(ii) below), as an accurate and complete copy of each of which (other than Material Contracts described in (a)(ii) below) has been provided or made available to Parent by the date of this Agreement, of all Material ContractsCompany on the Datasite. For purposes of this Agreement, “Material Contract” means all each of the following Contracts to that is unexpired and effective as of the date of this Agreement and under which the Company or any of its Subsidiaries is has ongoing rights or obligations will be deemed to constitute a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that“Material Contract”:
(i) are any Contract that is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10601(b)(10)(i) of Regulation S-K under the Securities ActAct or disclosed by the Company on a Current Report on Form 8-K;
(ii) relate any Contract that, by its terms, requires payments by the Company or any of its Subsidiaries in excess of $500,000 in the aggregate for remainder of the stated term of such Contract, other than those that are terminable by the Company of any of its Subsidiaries on no more than ninety days’ notice and without material liability or financial obligation to the formation Company or management any of its Subsidiaries;
(iii) any mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case, in excess of $500,000, other than (A) accounts receivables and payables, and (B) loans to or guarantees for direct or indirect wholly owned Subsidiaries of the Company, in each case, in the ordinary course of business consistent with past practice;
(iv) any Contract limiting, in any material respect, the freedom of the Company or any of its Subsidiaries to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to make use of any joint venture, partnershipmaterial Intellectual Property owned by the Company or any of its Subsidiaries;
(v) any Contract pursuant to which the Company or any of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other similar agreement than the Company or a Subsidiary thereof) any real property that is material by the Contract’s terms requires payment or receipt, as the case may be, in excess of $500,000, and any executory Contract for the sale or purchase of any real property;
(vi) any Contract entered into since the date of the filing of the Company’s last proxy statement with any of the Company’s or any of its Subsidiaries’ officers, directors, employees, principal shareholders or Persons who, to the knowledge of the Company, are controlled thereby, or, to the knowledge of the Company, any member of such Persons’ immediate families, other than any written employment, consulting, management services agreement or other compensation or benefit plan with the Company, or the Company’s or its Subsidiaries’ written employee policies and procedures;
(vii) any Contract pursuant to which any third Person is licensed to use any material Intellectual Property owned by the Company or any of its Subsidiaries, and all Contracts pursuant to which the Company or any of its Subsidiaries is licensed to use any material Intellectual Property, other than Contracts for commercially available off-the-shelf Software licensed to the Company or any of its Subsidiaries for an amount not in excess of $500,000 in any case over the term of the applicable Contract; or
(viii) any employment Contract with the Company or any of its Subsidiaries and any Contract with any labor union.
(b) Each Material Contract is valid and in full force and effect, and is enforceable against the Company and its Subsidiaries (and to the knowledge of the Company is enforceable against each other party thereto) in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies, except to the extent that they have previously expired in accordance with their terms, or if the failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the operations or business of the Company and its Subsidiaries, taken as a whole;.
(iiii) provide for Indebtedness of Neither the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of nor its Subsidiaries has directly guaranteed materially violated or breached, or committed any liabilities or obligations of another Person or under which another Person has directly guaranteed material default under, any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 Material Contract; (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(vii) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge knowledge of the Company, each no other party thereto, and is in full force and effect, except where the failure to be valid, bindingPerson has materially violated or breached, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Companycommitted any material default under, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, ; and (iii) neither the Company nor any of its Subsidiaries has received any written notice or, to the knowledge of the existence of Company, other communication regarding any event actual or condition that constitutespossible material violation or breach of, oror material default under, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Ameristar Casinos Inc), Merger Agreement (Pinnacle Entertainment Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(aSchedule 3.08(a) of the Company Disclosure Letter sets forth a listforth, as of the date hereof, a true and complete list of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all the following Contracts related to the Business to which the Company or any of its Subsidiaries the LIN Companies or their Affiliates or, to the Knowledge of Seller, WTGS TV, is a party or by which the Company, any of Seller or its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatAffiliates will be a party immediately following the Merger Closing:
(i) are any Contract under which the aggregate payments or would be required receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Actexceed, $150,000;
(ii) relate any Contract under which payments by or obligations of WTGS TV, the LIN Companies, the Seller or their Affiliates, relating to the formation Business, will be increased, accelerated or management vested by the occurrence (whether alone or in conjunction with any other event) of any joint venture, partnershipof the transactions contemplated by this Agreement, or other similar agreement that is material under which the value of the payments by or obligations of WTGS TV, the LIN Companies, the Seller or their Affiliates, relating to the business Business, will be calculated on the basis of any of the Company and its Subsidiariestransactions contemplated by this Agreement, taken as whether pursuant to a wholechange in control or otherwise;
(iii) provide any contract for Indebtedness of the Company Program Rights that involves cash payments or any of its Subsidiaries having an outstanding or committed amount equal to or cash receipts in excess of $10,000,000, other than any Indebtedness between or among any 100,000 over the remaining term of the Company and any of its Subsidiariessuch contract;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)network affiliation agreement;
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets any retransmission consent agreement with any MVPD with more than 10,000 subscribers in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries)Station’s Market;
(vi) prohibit the payment of dividends any Contract that relates to an ownership interest in any corporation, partnership, joint venture or distributions in respect of the shares other business enterprise or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Companyother entity;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual any Real Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its SubsidiariesLease;
(viii) involve any Contract relating to the Business, that relates to the guarantee (whether absolute or could reasonably be expected to involve aggregate payments contingent) by WTGS TV, the Seller or receipts by or to it and/or its Subsidiaries in excess the LIN Companies of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company performance of any material penalty, other Person (other than their respective Affiliates) or (y) the whole or any Company Lease, part of the Indebtedness or liabilities of any other Person (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactionsthan their respective Affiliates);
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective TimeBargaining Agreement;
(x) contain provisions any Contract that prohibit contains any power of attorney authorizing the Company incurrence of an obligation on the part of WTGS TV, the Seller, the LIN Companies relating to the Business;
(xi) any Contract that creates any partnership or joint venture or relates to the acquisition, issuance or transfer of any securities;
(xii) any Contract that relates to the borrowing or lending of its Affiliates from competing in money;
(xiii) any material line of business Contract that grants any Person an option or grant a right of exclusivity first refusal, right of first offer or similar preferential right to purchase or acquire any 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;
(xvii) any Contract involving compensation to any Person that prevents the Company Transferred Employee (as defined in Section 8 hereof), or any Affiliate Contract with an independent contractor or consultant engaged to perform services to the Business in excess of $100,000 per year (provided, however, that for purposes of this Section 3.8(a)(xiii), the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than term Contract shall not include at-will Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) upon 30 days’ notice without payment by the Company penalty or any Subsidiary of the Company of any material penaltyadditional payment);
(xixviii) involve any Contract with a Governmental Authority (other than ordinary course Contracts with Governmental Authorities as a customer) which imposes any material obligation or restriction on WTGS TV, the retention of any independent contractorSeller, consultant, the LIN Companies or agency for the provision of services their Affiliates as it relates to the Company with annualized fees in excess of $300,000;Business; and
(xiixix) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services Contract relating to the Company or any use of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, a Station’s digital bit stream other than managing agency in connection with broadcast television services. The contracts, agreements or managing general underwriting agreementsand leases required to be disclosed pursuant to this Section 3.08(a) are collectively referred to herein as the “Material Contracts”.
(b) As Each of the date of this Agreement, (i) each Material Contract Contracts is valid in full force and effect and binding on and enforceable upon the Company LIN Companies or any of their Affiliates, as applicable, and will be immediately following the Merger Closing binding and enforceable upon Seller or its Subsidiaries, to the extent such Person is a party theretoAffiliates, as applicable, and, to the Knowledge of Seller, WTGS TV or the Company, each other party parties thereto, subject in each case to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally and general principles of equity (regardless of whether enforcement is considered in full force and effect, except where the failure to be valid, binding, a proceeding at law or in full force equity). Prior to the Merger Closing, the LIN Companies have, and effect would not constitute a Material Adverse Effectfollowing the Merger Closing, (ii) the Company Seller and each of its SubsidiariesAffiliates have, and, to the Knowledge of Seller, WTGS TV has, performed their respective obligations under each of the CompanyMaterial Contracts in all material respects and are not in material default thereunder, any and to the Knowledge of Seller, WTGS TV and no other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of Material Contracts is in default thereunder in any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectmaterial respect.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Mercury New Holdco, Inc.), Asset Purchase Agreement (Media General Inc), Asset Purchase Agreement (LIN Media LLC)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as As of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which neither the Company or nor any of its Subsidiaries Company Subsidiary is a party to or bound by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) Contract that:
(i) are or would be is required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10601(b) of Regulation S-K under the Securities ActAct (other than any Company Benefit Plan);
(ii) relate relates to the formation or management of any partnership, joint venture, partnershipco-investment, limited liability, strategic alliance or other similar agreement that is material to involving the business Company or any of the Company Subsidiaries (other than any such agreement solely between or among the Company and its the Company Subsidiaries, taken as a whole);
(iii) provide for Indebtedness 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 Company or any of the Company Subsidiaries (or, after giving effect to the Merger, Parent or its Subsidiaries) may engage, the terms or conditions the Company or any of the Company Subsidiaries (or, after giving effect to the Merger, Parent or its Subsidiaries) can offer to any other Person, or the geographic area in which the Company or any of the Company Subsidiaries (or, after giving effect to the Mergers, Parent or its Subsidiaries) may so engage;
(iv) provides for the acquisition or disposition by the Company or any Company Subsidiary of any properties or assets (except for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business consistent with past practice), in each case with a fair market value in excess of $15,000,000;
(v) involves any pending or contemplated merger, consolidation or similar business combination transaction;
(vi) by its terms obligates the Company or any of the Company Subsidiaries to make expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) or entitles the Company or any of the Company Subsidiaries to payments (A) in excess of $10,000,000 in any 12 month period or (B) in excess of $50,000,000, in the aggregate over the term of such Contract; provided that expenditures and payments under hardware reseller arrangements will be measured on a net basis; provided further that customer Contracts entered into in the ordinary course of business are not required to be scheduled until 45 calendar days after the date of this Agreement;
(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 of the Company Subsidiaries, or (B) the payment of any cash or other consideration having an outstanding a value, in each case, of more than $1,000,000;
(viii) contains a standstill or committed amount equal similar Contract pursuant to which the Company or any of the Company Subsidiaries has agreed not to acquire assets or securities of any other Person;
(ix) was entered into with any of the Company Subsidiaries or any other Person in which the Company holds, directly or indirectly, any equity 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 such equity interests in such Person;
(x) evidences a capitalized lease obligation in excess of $10,000,000, or that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage, suretyship, “keep well” or other than agreement providing for or guaranteeing indebtedness of any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company surety or a Subsidiary has guaranteed the liabilities performance bonds, letters of credit or obligations of a wholly owned Subsidiary of the Company);
(v) have been similar agreements entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business 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 of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business Company Subsidiaries;
(xi) contains restrictions on the ability of the Company or any of its Subsidiariesthe Company Subsidiaries to pay dividends or other distributions (other than pursuant to the Company Articles and the Company Regulations);
(vixii) prohibit the payment of dividends contains a put, call or distributions in respect of the shares or capital stock of similar right pursuant to which the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company Subsidiaries could be required to purchase or sell, as applicable, any Subsidiary of the Company or prohibit the issuance equity interests of any guarantee by the Company Person or any Subsidiary assets that have a fair market value or purchase price of the Companymore than $5,000,000, or constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a hedging transaction;
(viixiii) restrict is (A) material license (by or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any Company Subsidiary), covenant not to xxx, escrow, or other Contract that grants rights in or to any material Intellectual Property rights and (B) an exclusive license or other Contract affecting the Company’s or any of its the Company Subsidiaries’ ability to disclose, own, enforce, use, or license any material Intellectual Property (provided, however, that the following are not required to be scheduled but shall constitute Material Contracts solely for purposes of Section 4.14(b) and the last sentence of Section 4.14(c) if they otherwise qualify: (w) non-exclusive licenses granted to customers in each casethe ordinary course of business consistent with past practice; (x) non-exclusive licenses implied by the sale of a product and (y) licenses of commercially available, for aggregate annual or one-time fees in excess of $2,000,000unmodified, other than commercially available “off-the-shelf” software licenses under which software is shelf Software licensed pursuant to the Company click-through, click-wrap, or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of standard terms and conditions for less than $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiariesannually); or
(xiv) provide for would prohibit or materially delay the outsourcing of any material function or part consummation of the business of Merger or the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, Transactions. Each such Contract described in clauses (i) each Material Contract through (xiv) above is valid and binding on the Company or any of its Subsidiaries, referred to the extent such Person is herein as a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each “Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect”.
Appears in 3 contracts
Samples: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Ares Management LLC)
Contracts. (a) Except for this Agreement and each Contract Contracts previously filed as an exhibit with the SEC, Contracts with respect to the Filed SEC Documents, Company Leases that are listed in Section 4.16(a3.17(b) of the Company Disclosure Letter sets forth a listand Company Plans, as Section 3.15 of the date Company Disclosure Letter identifies each note, bond, mortgage, indenture, contract, agreement, lease, license, permit or other instrument or obligation (each, a “Contract”) that constitutes a Company Material Contract (as defined below), an accurate and complete copy of this Agreement, each of all Material Contractswhich has been provided or made available to the Acquirors by the Company. For purposes of this Agreement, “Material Contract” means all each of the following Contracts to that is unexpired and effective as of the date of this Agreement and under which the Company or any of its Subsidiaries is has ongoing rights or obligations will be deemed to constitute a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than “Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatMaterial Contract”:
(i) are any Contract that is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10601(b) (10)(i) of Regulation S-K under the Securities ActAct or disclosed by the Company on a Current Report on Form 8-K;
(ii) any Contract that, by its terms, requires payments by the Company or any of its Subsidiaries in excess of $500,000 in the aggregate for the remainder of the stated term of such Contract, other than those that are (A) terminable by the Company or any of its Subsidiaries on no more than ninety (90) days’ notice and without liability or financial obligation to the Company or any of its Subsidiaries or (B) relate to the formation or management purchase of any joint venturesupplies, partnershiputilities, services, equipment or other similar agreement that is material to goods in the business ordinary course of the Company and its Subsidiaries, taken as a wholebusiness;
(iii) provide for Indebtedness any mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in excess of $300,000, other than (A) accounts receivables and payables, (B) loans by the Company or any of its direct or indirect Subsidiaries to, or guarantees by any of the foregoing for, direct or indirect wholly-owned Subsidiaries of the Company or (C) letters of credit or bonds issued by the Company or one of its Subsidiaries to Governmental Entities in connection with workers compensation or Gaming Laws, in each case, in the ordinary course of business consistent with past practice;
(iv) any Contract limiting, in any respect, the freedom of the Company or any of its Subsidiaries having an outstanding to engage or committed amount equal to participate, or compete with any other Person, in excess of $10,000,000, other than any Indebtedness between or among any of the business currently conducted by the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed or in any liabilities market or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelinesgeographic area, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance to make use of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted owned by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (zv) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede any of the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function ’ officers, directors, employees, principal stockholders or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, andPersons who, to the Knowledge of the Company, each other party theretoare controlled thereby, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, andor, to the Knowledge of the Company, any member of such Persons’ immediate families, other than (A) any written employment, consulting or management services agreement or other compensation or benefit plan with the Company, or (B) the Company’s or its Subsidiaries’ written employee policies and procedures;
(vi) any Contract pursuant to which any Third Party is licensed to use any Intellectual Property owned by the Company or any of its Subsidiaries, and all Contracts pursuant to which the Company or any of its Subsidiaries is licensed to use any Intellectual Property, other than Contracts for (A) commercially available off-the-shelf Software licensed to the Company or any of its Subsidiaries for an amount not in excess of $500,000 in any case over the term of the applicable Contract and (B) the licensing or cross-licensing of Intellectual Property in the ordinary course of business; or
(vii) any Contract obligating the Company to manage any gaming assets on behalf of an unrelated Third Party or pursuant to which any Third Party manages any gaming assets or properties of the Company or its Subsidiaries.
(b) Each Company Material Contract is valid and in full force and effect, and is enforceable against the Company and its Subsidiaries (and to the Knowledge of the Company is enforceable against each other party thereto) in accordance with its terms, has performed all obligations required except to the extent that they have previously expired in accordance with their terms, or if the failure to be performed by it under each in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect and subject in all cases to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) Laws governing specific performance, injunctive relief and other equitable remedies.
(c) Neither the Company nor its Subsidiaries has materially violated or materially breached, or committed any material default under, any Company Material Contract; (ii) to the Knowledge of the Company, except where such noncompliance would not constitute a no other Person has materially violated or materially breached, or committed any default under, any Company Material Adverse Effect, Contract; and (iii) neither the Company nor any of its Subsidiaries has received any written notice or, to the Knowledge of the existence of Company, other communication regarding any event actual or condition that constitutespossible material violation or material breach of, oror default under, after notice or lapse of time or both, will constitute, a default on the part of the any Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Eldorado Resorts, Inc.), Merger Agreement (Icahn Enterprises Holdings L.P.), Merger Agreement (Gaming & Leisure Properties, Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC DocumentsAgreement, Section 4.16(a4.08(a) of the Company XXX Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes Contracts (except for any XXX Insurance Contract, XXX Reinsurance Contract, XXX Benefit Plan or STFC Benefit Plan) to which XXX or any of this Agreementits Subsidiaries, as applicable, is a party to or bound that meets the following criteria (each, a “XXX Material Contract” means all Contracts ”):
(i) (A) containing covenants that purport to which materially restrict the Company ability of XXX or any of its Subsidiaries is or, at or after the Closing, LMHC or any of its Subsidiaries from (1) engaging in any business or competing in any business with any Person or in any geographic area, (2) operating its business in any manner or location, in each case, other than with respect to soliciting or hiring employees or (3) acquiring assets or securities of another Person (whether through a party standstill or by which otherwise), (B) provides for the Companygranting of “most favored nation” pricing or exclusive rights to any Person or (C) would require the disposition of any material assets or line of business of XXX or its Subsidiaries or acquisition of any material assets or line of business of any Person or, at or after the Closing, LMHC or any of its Subsidiaries;
(ii) with respect to any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to XXX or any of its Subsidiaries, or except for any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company such Contract solely between XXX and its wholly-owned Subsidiaries or solely among SAM’s wholly-owned Subsidiaries, taken as a whole;
(iii) provide for that evidences the creation, incurrence, assumption or guarantee of Indebtedness of the Company XXX or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,0007,500,000, other than any Indebtedness between or among any of the Company XXX and any of its wholly-owned Subsidiaries;
(iv) are limiting or prohibiting (or purporting to limit or prohibit) the declaration of or payment of dividends or distributions to the XXX Members or in respect of the capital stock or other equity securities of any keepwell of the Subsidiaries of XXX, prohibiting the pledging of any capital stock or similar agreement under which other equity securities of any of the Company Subsidiaries of XXX or prohibiting the issuance of guarantees by XXX or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Companypursuant to applicable Law);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company which XXX or any of its Subsidiaries (A) licenses any material Intellectual Property from any non-Affiliated Person (other than licenses for open source or off-the-shelf software pursuant to “click-wrap” or “shrink-wrap” agreements), (B) licenses any material Intellectual Property to any non-Affiliated Person or (C) is limited in its own use or enforcement of any Intellectual Property owned by XXX or its Subsidiaries);
(vi) prohibit any Contract the payment principal purpose of dividends which is to indemnify any current or distributions former XXX Member in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Companypotential Tax Liabilities;
(vii) restrict any collective bargaining agreement or grant rights any other labor-related agreement or arrangement with any labor union, trade union, labor organization or other employee representative body;
(viii) relating to use an acquisition, disposition or practice rights under divestiture of any business or any assets that constitute a business or business unit or division of another Person (whether by merger, sale of stock, sale of assets or otherwise) and which contains representations, covenants, material Intellectual Propertyindemnities or other material obligations (including material indemnification, “earn-out” or other contingent obligations) that are still in effect (other than this Agreement and confidentiality agreements in connection with any potential acquisition, divestiture, merger or similar transaction);
(ix) evidencing derivatives, financial or commodity hedging or similar trading activities, including agreements providing for the creation any interest rate or development of material Intellectual Property currency swaps or access and use of hosted Software and licenses similar Contract to use or practice material Intellectual Property granted by (x) the Company which XXX or any of its Subsidiaries is a party;
(x) containing a put, call, right of first refusal, right of first offer or similar right or obligation pursuant to a third Person or (y) a third Person to the Company which XXX or any of its SubsidiariesSubsidiaries would be required to purchase or sell, in each caseas applicable, for aggregate annual all or one-time fees in excess any substantial part of $2,000,000any material assets, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company rights or properties of XXX or any of its Subsidiaries;
(viiixi) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess that restricts the ability of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company XXX or any of its Subsidiaries after the Effective Time;
to declare, set aside or pay any dividends on, or make any other distributions (xwhether in cash, stock, property or any combination thereof) contain provisions that prohibit the Company or in respect of, any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the worldcapital stock, other than Contracts that can be terminated (including such restrictive provisions) by the Company equity or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000voting interests;
(xii) constitute collective bargaining agreementswith respect to any voting agreement, voting trust, shareholder agreement or registration rights agreement, other than in connection with XXX Investment Assets;
(xiii) involve the provision containing a mortgage, pledge, security agreement, deed of trust or similar Lien (other than any Permitted Lien) on any property or assets material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of XXX and its Subsidiaries; orSubsidiaries (taken as a whole);
(xiv) provide for the outsourcing requiring any capital commitment or capital expenditures (including any series of any material function related expenditures) or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company pursuant to which XXX or any of its Subsidiaries, individually or collectively, have any obligations (including with respect to the extent such Person purchase or sale of materials, supplies, goods, equipment or other assets), in each case, in excess of $2,000,000 per year or in the next twelve (12) months;
(xv) that are XXX Leases;
(xvi) that provides for any guarantee of third-party obligations, other than any guarantees by XXX of its Subsidiaries’ obligations or guarantees by SAM’s Subsidiaries of SAM’s obligations;
(xvii) with any Governmental Authority, other than any non-disclosure or similar Contract or Policy entered into in the ordinary course of business;
(xviii) providing for any settlement of any Action (other than ordinary course claims made under XXX Insurance Contracts within applicable policy limits) that (A) imposes material future limitations on the operation of XXX and its Subsidiaries or (B) involves (x) payments after December 31, 2020, in excess of $5,000,000 or (y) monitoring or reporting obligations to any other Person; or
(xix) that provides for the “sale” (as defined in the California Consumer Privacy Act) of Personal Data Processed by XXX or any of its Subsidiaries.
(b) Assuming the due authorization, execution and delivery thereof by the other party or parties thereto, (i) each XXX Material Contract is a valid and binding obligation of XXX and any of its Subsidiaries party thereto, as applicable, thereto and, to the Knowledge of the CompanyXXX, each other party or parties thereto, in accordance with its terms and is in full force and effect, except where subject to the failure to be validBankruptcy and Equity Exception, binding(ii) as of the date hereof, or each XXX Material Contract is in full force and effect would not constitute a Material Adverse Effecteffect, (iiiii) the Company XXX and each any applicable Subsidiary of its Subsidiaries, XXX is not and, to the Knowledge of XXX, as of the Companydate hereof, any no other party theretothereto is in default in the performance, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence observation or fulfillment of any event obligation, covenant or condition that constitutescontained in each XXX Material Contract and (iv) no event has occurred that, orwith or without notice, after notice or lapse of time or both, will constitute, would constitute a default on the part of the Company by XXX or any of its Subsidiaries Subsidiaries, or to the Knowledge of XXX, as of the date hereof, by any other party thereto, under any XXX Material Contract, except where such default would not constitute a Material Adverse Effectexcept, with respect to each of the foregoing clauses (i), (ii), (iii) and (iv) there are no events where such failures to be valid and binding and in full force and effect and defaults would not, individually or conditions that constitutein the aggregate, or, after notice or lapse of time or both, will constitute have a default on the part of any counterparty under such Material Contract, except as would not constitute a XXX Material Adverse Effect. XXX has made available to LMHC a copy of each XXX Material Contract.
Appears in 3 contracts
Samples: Merger Agreement (State Auto Financial CORP), Merger Agreement, Merger Agreement
Contracts. (a) Except for this Agreement Schedule 4.11 annexed hereto sets forth an accurate, correct and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) complete list of the Company Disclosure Letter sets forth a listfollowing Contracts, as of in effect at any time from October 1, 1994 through the date of this Agreementhereof, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is or was a party or party, by which any of them are bound or pursuant to which the Company, Company or any of its Subsidiaries, Subsidiaries is or any of their respective properties was an obligor or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
a beneficiary: (i) are or would be required Any material Contracts with respect to be filed by Real Property (which restrains the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness ability of the Company or any of its Subsidiaries having an outstanding to use such Real Property), Intangible and Other Property, all Affiliate Contracts (whether or committed amount equal to not material), Termination Agreements (whether or not material), Benefit Plans (whether or not material), and labor matters; (ii) Any Contract for capital expenditures or services by the Company or any of its Subsidiaries which involves consideration payable by the Company or any of its Subsidiaries in excess of $10,000,000100,000 in any fiscal year; (iii) Any Contract evidencing any indebtedness for borrowed money in excess of $50,000 or obligation for the deferred purchase price of Assets in excess of $100,000 (excluding normal trade payables) or guaranteeing any indebtedness, other than any Indebtedness between obligation or among any liability in excess of the Company and any of its Subsidiaries;
$100,000; (iv) are any keepwell or similar agreement under which Any material Contract wherein the Company or any of its Subsidiaries has directly guaranteed agreed to a non-competition provision; (v) Any material joint venture, partnership, cooperative arrangement or any liabilities other material Contract involving a sharing of profits; (vi) Any material Contract with any Governmental Authority other than for sale of merchandise in the ordinary course of business; (vii) Any power of attorney, proxy or obligations similar instrument granted by or to the Company or any of another Person or under which another Person has directly guaranteed any liabilities or obligations its Subsidiaries; and (viii) Any other Contract related to the business of the Company or any of its Subsidiaries, in as currently conducted, which provides for a period of performance which extends beyond twelve (12) months from the date hereof or is not cancelable upon ninety (90) days' notice. Accurate, correct and complete copies of each case involving liabilities or obligations in excess such written Contract and written summaries of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) each such oral Contract have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee delivered by the Company to the Parent or any Subsidiary of made available to the Parent at the Company;
(vii) restrict or grant rights 's offices. Prior to use or practice rights under material Intellectual Propertythe Closing, including agreements providing for the creation or development Company will provide to the Parent an accurate, correct and complete list, and make available to the Parent at the Company's offices accurate, correct and complete copies, of material Intellectual Property or access all written Contracts and use written summaries of hosted Software and licenses to use or practice material Intellectual Property granted each oral Contract entered into by (x) the Company or any of its Subsidiaries from the date hereof through the Closing Date of a type that is described in this Section 4.11(a). (b) Each Contract listed or referred to a third Person or (y) a third Person on Schedule 4.11 to which the Company or any of its SubsidiariesSubsidiaries is or was a party, in each case, for aggregate annual by which any of them is bound or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under pursuant to which software is licensed to the Company or any of its Subsidiaries;
(viii) involve Subsidiaries is or could was an obligor or a beneficiary is in full force and effect, except as is not reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected tolikely, individually or in the aggregate, preventto have a Material Adverse Effect. Each of the Company and its Subsidiaries has complied with all commitments and obligations on its part to be performed or observed under each such Contract, materially delayexcept for such noncompliance which is not reasonably likely, individually or materially impede in the Company’s ability aggregate, to consummate have a Material Adverse Effect. To the Transactions knowledge of the Company without due inquiry, each party to each such Contract other than the Company and its Subsidiaries has complied with all commitments and obligations on its part to be performed or Parent’s ability observed thereunder, except for such noncompliance which is not reasonably likely, individually or in the aggregate, to own and/or conduct the business have a Material Adverse Effect. Except as set forth in Schedule 4.11 annexed hereto, none of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received any notice of the existence of a default under any such Contract and no event or condition that constitutes, has happened or presently exists which constitutes a default or, after notice or lapse of time or both, will constitute, would constitute a default on the part of the Company or any of its Subsidiaries under any Material such Contract, except where for such default would notices and defaults which are not constitute reasonably likely, individually or in the aggregate (together with the items set forth in Schedule 4.11 annexed hereto), to have a Material Adverse Effect. Except as set forth in Schedule 4.11 annexed hereto, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, the Merger will constitute a default on the part not be considered an assignment of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.of the Contracts. A-16
Appears in 3 contracts
Samples: Merger Agreement (Marietta Corp), Merger Agreement (Marietta Corp), Merger Agreement (Marietta Corp)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(aSchedule 5.14(a) of the Company Disclosure Letter sets forth a list, lists all contracts --------- ---------------- as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts hereof (whether written or oral) to which the any Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets Company is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatbound:
(i) for the employment of any officer or employee (other than any contract which is terminable without liability upon notice of 30 days or less) or with any former officer, director or employee pursuant to which, in any case, payments in excess of $60,000 in any 12-month period are or would be required to be filed made by any of the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under Companies after the Securities Actdate hereof;
(ii) relate to for the formation future purchase or management sale of real property;
(iii) for the purchase by any joint ventureCompany of supplies or equipment which Parent reasonably anticipates will involve the payment of more than $100,000 after the date hereof or which extends beyond December 31, 2002;
(iv) that constitute loan agreements, promissory notes, indentures, bonds, security agreements, Guarantees of Indebtedness for Borrowed Money or other instruments involving Indebtedness for Borrowed Money in an amount in excess of $100,000;
(v) that constitute partnership, joint venture or other similar agreement agreements or arrangements;
(vi) containing any covenant or provision prohibiting any Company from engaging in any line or type of business;
(vii) that license to a third party the right to conduct the Business or any part thereof or that assign or transfer any right to all or any of the revenues therefrom;
(viii) creating or granting any Encumbrance upon any of the properties or assets of any Company, other than the Parent Securitization Agreements;
(ix) that constitute a material license of any Intellectual Property owned or used in the Business or by any Company;
(x) involving any lease, sublease or similar contract, agreement, instrument or arrangement with any Person (other than the Companies) under which any Company is a lessor or sublessor of, or makes available for use to any Person (other than the Companies), (i) any Leased Real Property or (ii) any Owned Real Property;
(xi) relating to the acquisition or disposition of any business since January 1, 2000 (whether by merger, sale of stock, sale of assets or otherwise) which is or was material to the business of the Company and its Subsidiaries, Companies taken as a whole;
(iiixii) provide for Indebtedness of the Company that constitute franchise agreements or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;similar arrangements; and
(ivxiii) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets otherwise not in the ordinary course of business or of supplies, products, properties, or other assets the Business consistent with past practice that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant Companies taken as a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementswhole.
(b) As Schedule 5.14(b) sets forth each contract between a Company, on ---------------- the one hand, and Parent or an Affiliate of Parent (other than the Companies), on the other hand, except those which are terminable by a Company without penalty on 60 days' or less notice or which provide for annual payments of less than $75,000 or which relate to the Excluded Business.
(c) Except as set forth in Schedule 5.14(c), none of the date contracts ---------------- listed in Schedule 5.14(c) (which include the Significant Customer Contracts) ---------------- have "change of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is control provisions" which would give a party thereto, as applicable, and, a right to the Knowledge terminate such contract upon consummation of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, transactions contemplated hereby or in full force and effect under which a default would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge occur upon consummation of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effecttransactions contemplated hereby.
Appears in 3 contracts
Samples: Purchase Agreement (Aramark Worldwide Corp), Purchase Agreement (Aramark Worldwide Corp), Purchase Agreement (Aramark Corp)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(aSchedule 3.08(a) of the Company Disclosure Letter sets forth a listforth, as of the date hereof, a true and complete list of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all the following Contracts related to the Business to which the Company or any of the LIN Companies or its Subsidiaries Affiliates is a party or by which the Company, any of Seller or its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatAffiliates will be a party immediately following the Merger Closing:
(i) are any Contract under which the aggregate payments or would be required receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Actexceed, $150,000;
(ii) relate any Contract under which payments by or obligations of the LIN Companies, the Seller or their Affiliates, relating to the formation Business, will be increased, accelerated or management vested by the occurrence (whether alone or in conjunction with any other event) of any joint venture, partnershipof the transactions contemplated by this Agreement, or other similar agreement that is material under which the value of the payments by or obligations of the LIN Companies, the Seller or their Affiliates, relating to the business Business, will be calculated on the basis of any of the Company and its Subsidiariestransactions contemplated by this Agreement, taken as whether pursuant to a wholechange in control or otherwise;
(iii) provide any contract for Indebtedness of the Company Program Rights that involves cash payments or any of its Subsidiaries having an outstanding or committed amount equal to or cash receipts in excess of $10,000,000, other than any Indebtedness between or among any 100,000 over the remaining term of the Company and any of its Subsidiariessuch contract;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)network affiliation agreement;
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets any retransmission consent agreement with any MVPD with more than 10,000 subscribers in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries)Stations’ Market;
(vi) prohibit the payment of dividends any Contract that relates to an ownership interest in any corporation, partnership, joint venture or distributions in respect of the shares other business enterprise or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Companyother entity;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual any Real Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its SubsidiariesLease;
(viii) involve any Contract relating to the Business, that relates to the guarantee (whether absolute or could reasonably be expected to involve aggregate payments contingent) by the Seller or receipts by or to it and/or its Subsidiaries in excess the LIN Companies of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company performance of any material penalty, other Person (other than their respective Affiliates) or (y) the whole or any Company Lease, part of the Indebtedness or liabilities of any other Person (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactionsthan their respective Affiliates);
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective TimeBargaining Agreement;
(x) contain provisions any Contract that prohibit contains any power of attorney authorizing the Company 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 joint venture or relates to the acquisition, issuance or transfer of any securities;
(xii) any Contract that relates to the borrowing or lending of its Affiliates from competing in money;
(xiii) any material line of business Contract that grants any Person an option or grant a right of exclusivity first refusal, right of first offer or similar preferential right to purchase or acquire any 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;
(xvii) any Contract involving compensation to any Person that prevents the Company Transferred Employee (as defined in Section 8 hereof), or any Affiliate Contract with an independent contractor or consultant engaged to perform services to the Business in excess of $100,000 per year (provided, however, that for purposes of this Section 3.8(a)(xiii), the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than term Contract shall not include at-will Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) upon 30 days’ notice without payment by the Company penalty or any Subsidiary of the Company of any material penaltyadditional payment);
(xixviii) involve any Contract with a Governmental Authority (other than ordinary course Contracts with Governmental Authorities as a customer) which imposes any material obligation or restriction on the retention of any independent contractorSeller, consultant, the LIN Companies or agency for the provision of services their Affiliates as it relates to the Company with annualized fees in excess of $300,000;Business; and
(xiixix) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services Contract relating to the Company or any use of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, a Station’s digital bit stream other than managing agency in connection with broadcast television services. The contracts, agreements or managing general underwriting agreementsand leases required to be disclosed pursuant to this Section 3.08(a) are collectively referred to herein as the “Material Contracts”.
(b) As Each of the date of this Agreement, (i) each Material Contract Contracts is valid in full force and effect and binding on and enforceable upon the Company LIN Companies, and will be immediately following the Merger Closing binding and enforceable upon Seller or any of its Subsidiaries, to the extent such Person is a party theretoAffiliates, as applicable, and, to the Knowledge of Seller, the Company, each other party parties thereto, subject in each case to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally and general principles of equity (regardless of whether enforcement is considered in full force and effect, except where the failure to be valid, binding, a proceeding at law or in full force equity). Prior to the Merger Closing, the LIN Companies have, and effect would not constitute a Material Adverse Effectfollowing the Merger Closing, (ii) the Company Seller and its Affiliates have, performed their respective obligations under each of its Subsidiariesthe Material Contracts in all material respects and are not in material default thereunder, and, and to the Knowledge of the CompanySeller, any no other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of Material Contracts is in default thereunder in any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectmaterial respect.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Mercury New Holdco, Inc.), Asset Purchase Agreement (Media General Inc), Asset Purchase Agreement (LIN Media LLC)
Contracts. (a) Except for this Agreement and each Contract Contracts filed as an exhibit exhibits to the Filed SEC DocumentsDocuments and purchase orders entered into in the ordinary course of business consistent with past practice, Section 4.16(a) 4.17 of the Company Disclosure Letter Schedule sets forth a list, true and complete list as of the date of this AgreementAgreement of each of the following Contracts (the “Material Company Contracts”):
(i) all Contracts of the Company or any 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 all Material Contracts. For purposes of this Agreementmore than $2,000,000, “Material Contract” means 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 that would remain in effect following the Merger;
(vii) 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 constitute a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K).
(b) Each Material Company Contract is binding on the Company or its applicable Subsidiary thereto, and is in full force and effect. Neither the Company nor any of its Subsidiaries is in breach, default or violation of (and no event has occurred which with notice or the lapse of time or both would constitute a default or violation by the Company or any of its Subsidiaries of) any term, condition or provision of any indebtedness, guarantee or any Material Company Contract, including any specification, schedule, quality assurance provision, inspection or test requirement, or performance or payment milestone, to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound bound, which breach, default or violation would have a Company Material Adverse Effect.
(other than c) Except where the following matters have not had and would not have a Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatMaterial Adverse Effect:
(i) are (A) to the Knowledge of the Company, each Company Government Contract or would be required to be filed by 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 Company subject of bid or award protest proceedings as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Actdate of this Agreement;
(ii) relate to neither the formation or management of United States government nor any joint ventureprime contractor, partnership, subcontractor or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company person or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries entity has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of notified the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1writing, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries has breached or violated any Law or material certification, representation, clause, provision or requirement pertaining to a third Person Company Government Contract or (y) a third Person to the Company Government Subcontract, and all facts set forth or acknowledged by any of its Subsidiaries, in each case, for aggregate annual representations or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts certifications submitted by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business behalf of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the in connection with a Company Government Contract or any of its Affiliates from competing Company Government Subcontract were current, accurate and complete in any all material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries respects on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, submission;
(iii) neither the Company nor any of its Subsidiaries has received any notice of the existence termination for convenience, notice of any event or condition that constitutestermination for default, or, after cure notice or lapse show cause notice pertaining to a Company Government Contract or Company Government Subcontract; and
(iv) other than in the ordinary course of time or both, will constitute, a default on the part 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 Material ContractGovernmental Entity, except where such default or any audit or investigation by the Company or any of its Subsidiaries, with respect to 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 not constitute have a Company Material Adverse Effect. In addition, and (iv) to the Knowledge of the Company, there are no events known or conditions 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 constitute, or, after notice would warrant the institution of suspension or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectdebarment proceedings.
Appears in 3 contracts
Samples: Merger Agreement (Flir Systems Inc), Merger Agreement (Flir Systems Inc), Merger Agreement (Icx Technologies Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(aSECTION 4.13(A) of the Company Disclosure Letter sets forth a list, as lists or describes all of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts following to which the Company or any of its Subsidiaries is a party or by which as of the Companydate of this Agreement (collectively, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
the "COMPANY CONTRACTS"): (i) are all agreements, contracts, leases or would be required to be filed by binding commitments, the Company as a “material contract” pursuant to Item 601(b)(10) performance of Regulation S-K under the Securities Act;
(ii) relate to the formation which may involve payment or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) receipt by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees consideration in excess of $300,000;
200,000 in any twelve (xii12) constitute collective bargaining agreements;
month period; (xiiiii) involve the provision of material third-party administration any indenture, mortgage, promissory note, loan agreement or other policy agreement or claims administration services with respect to any Insurance Contracts, or investment management services to commitment for the borrowing of money by the Company or any of its Subsidiaries; or
(xiviii) provide any lease, sublease or other agreement pursuant to which it is a lessee of or holds or operates any real or personal property owned by any third party requiring payments in excess of $200,000 over the remaining term of the contract; (iv) any option or other executory agreement or other agreement with remaining obligations thereunder to purchase or acquire any interest in assets or property for more than $200,000 other than in the outsourcing ordinary course of business; (v) any option or other executory agreement or other agreement with remaining obligations thereunder to sell or dispose of any interest in assets or property for more than $200,000 other than in the ordinary course of business; (vi) any contract or agreement creating a joint venture or similar arrangement by which the assets, properties, rights, or business is materially affected; (vii) any guaranty, keepwell, makewhole or similar agreement of or with respect to the obligations of third parties involving in excess of $200,000; (viii) any agreement which restricts the Company from doing business anywhere in the world or limits the business in which it may engage; (ix) any agreement or arrangement under which the Company agrees to indemnify any person or to share Tax liability of any person; (x) any license of material function or part Company Intellectual Property (as defined in SECTION 4.15) (including use of the business name of the Company or any similar name) of its Subsidiaries that is necessary for the conduct of the business of or by the Company and its Subsidiaries as currently conducted, other than managing agency agreements in the ordinary course of business; and (xi) any contract or managing general underwriting agreementsagreement under which the Company has the obligation to issue or sell any security.
(b) As Each Company Contract is a valid, binding and enforceable obligation of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicableCompany, and, to the Knowledge of the Company, each of the other party theretoor parties thereto (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors' rights, or by general equity principles, including principles of commercial reasonableness, good faith and fair dealing), and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, each Company Contract is in full force and effect.
(c) Neither the Company nor, to the Knowledge of the Company any other party thereto, is in breach of or default under any term of any Company Contract or has performed all obligations required to be performed by it under each Material repudiated any term of any Company Contract, except where for such noncompliance breaches, defaults or repudiations that would not constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
(d) The Company has not received any written notice of termination or cancellation with respect to any Company Contract, and to the Knowledge of the Company, no other party to a Company Contract plans to terminate or cancel any such agreement, except for such terminations and cancellations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Appears in 3 contracts
Samples: Acquisition Agreement (Lante Corp), Acquisition Agreement (Lante Corp), Acquisition Agreement (Sbi & Co)
Contracts. (ai) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, listed on Section 4.16(a5.1(q) of the Company Disclosure Letter sets forth a listLetter, as none of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party to or bound by which any Contract as of the Company, any date of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatthis Agreement:
(iA) are or that would be required to be filed by the Company as a “material contract” with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act that has not been so filed;
(B) (1) containing covenants of the Company or any of its Subsidiaries purporting to limit in any material respect any line of business, industry or geographical area in which the Company or its Subsidiaries may operate or limiting the right of the Company or any of its Subsidiaries to compete with any Person or levying a fine, charge or other payment for doing so, or (2) limiting the right of the Company or any of its Subsidiaries pursuant to any “most favored nation” or “exclusivity” or “sole sourcing” provisions, in each case of the above other than (a) any such Contracts that may be cancelled without Liability to the Company or its Subsidiaries upon notice of 90 days or less or (b) where any such covenants or other provisions are not material to the Company or any of its Subsidiaries;
(C) that would be required to be disclosed by Section 404(a) of Regulation S-K under the Exchange Act;
(iiD) relate that contains a put, call or similar right pursuant to which the formation Company or management any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets constituting a division or business line of any Person, in each case, other than acquisitions by the Company or any of its Subsidiaries of the foregoing that have a fair market value or purchase price of less than $30 million individually or $50 million in the aggregate;
(E) that contains any standstill or similar agreement pursuant to which the Company or any of its Subsidiaries currently is restricted from acquiring assets or securities of another Person;
(F) other than with respect to any partnership that is wholly owned by the Company or any wholly owned Subsidiary of the Company, any partnership, joint venture, partnership, joint product development (other than a development agreement for any customer entered into in the ordinary course of business) or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any joint product development, partnership or joint venture or that involves a sharing of revenues, profits, losses, costs or liabilities and is material to the Company and its Subsidiaries, taken as a whole, or in which the Company owns more than a 15% voting or economic interest, or any interest valued at more than $30 million without regard to percentage voting or economic interest;
(G) relating to or evidencing Indebtedness in excess of $20 million individually or $40 million in the aggregate;
(H) that grants any rights of first refusal, rights of first negotiation or other similar rights to any Person with respect to the sale of any material assets of the Company and its Subsidiaries, taken as a whole, or of any Subsidiary or material business of the Company and its Subsidiaries;
(I) (1) entered into after December 31, 2017, and not yet consummated, for the acquisition or disposition, directly or indirectly (by scheme of arrangement, merger or otherwise), of assets or capital stock or other equity interests of any Person for aggregate consideration under such Contract in excess of $50 million individually, or $100 million in the aggregate, other than purchases of inventory or similar assets in the ordinary course of business or (2) for any acquisition, directly or indirectly (by scheme of arrangement, merger or otherwise), of assets or capital stock or other equity interests of any Person, pursuant to which the Company or any of its Subsidiaries has continuing “earn out” or other similar contingent payment obligations (but excluding indemnification obligations with respect to breaches of representations, warranties or covenants);
(J) that is, except for licenses granted to customers of the Company in the ordinary course of business, (1) an agreement pursuant to which the Company or any of its Subsidiaries is licensed or is otherwise permitted by a third party to use any material Intellectual Property (other than any “commercially available off-the-shelf software package,” or other software licensed pursuant to a software “shrink wrap,” “click wrap,” or “click-through” license) or (2) an agreement pursuant to which a third party is licensed or is otherwise permitted to use any material Intellectual Property owned by the Company or any of its Subsidiaries, in each case of clauses (1) and (2) where such agreement is material to the business of the Company and its Subsidiaries, taken as a whole;; and
(iiiK) provide that by its express terms calls for Indebtedness of aggregate payment or receipt by the Company or any of and its Subsidiaries having an outstanding under such Contract of more than $25 million over the annual term of such Contract and is not terminable at will by any party upon ninety (90) days’ notice or committed amount equal to less with no liability or in excess of $10,000,000, further obligation thereunder (other than any Indebtedness this Agreement, Contracts solely between or among any of the Company and any of its wholly-owned Subsidiaries;
(iv, Contracts that are subject of another subsection of this Section 5.1(q) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations Material Leases); (each such Contract required to be listed on Section 5.1(q) of the Company Disclosure Letter (whether or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or not so listed) is referred to herein as a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company“Material Contract”);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(bii) As Each of the date of this AgreementMaterial Contracts, (i) each Material Contract Customer Contracts, Supplier Agreements and Distributor Contracts is valid and binding on the Company or any and each of its Subsidiaries, to the extent such Person Subsidiaries that is a party thereto, as applicable, thereto and, to the Knowledge of the Company, each other party thereto, thereto and is in full force and effect, except where the failure for such failures to be valid, binding, valid and binding or to be in full force and effect that have not had and would not constitute reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, . There is no default under any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse EffectCustomer Contract, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event Supplier Agreement or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of Distributor Contract by the Company or any of its Subsidiaries under that is a party thereto, or to the Knowledge of the Company any Material Contract, except where such default would not constitute a Material Adverse Effectother party thereto, and (iv) there are no events or conditions event has occurred that constitute, or, after with notice or lapse of time or both, will both would constitute a default on thereunder by the part Company or any of its Subsidiaries that is a party thereto, or to the Knowledge of the Company any counterparty under such other party thereto, except in each case as is not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Complete and correct copies of each Material Contract, except as would not constitute a Material Adverse EffectCustomer Contract and Supplier Contract and any material amendments (in each case, excluding purchase orders in the ordinary course of business) thereto have been provided or made available to Buyer prior to the date hereof.
(iii) For purposes of this Agreement:
Appears in 3 contracts
Samples: Bid Conduct Agreement, Bid Conduct Agreement (ARRIS International PLC), Bid Conduct Agreement (CommScope Holding Company, Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) 3.17 of the Company Disclosure Letter sets forth a list, as true and complete list of the date following types of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party (such Contracts being “Material Contracts”):
(i) Contracts (including any so-called take-or-pay or by keepwell agreements) under which (A) any person including the Company or a Company Subsidiary, has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or a Company Subsidiary in excess of $3,000,000 or (B) the Company or a Company Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person, including the Company or another Company Subsidiary, in excess of $3,000,000 (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(ii) Contracts under which the Company or a Company Subsidiary has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person in excess of $3,000,000 (other than the Company or a Company Subsidiary and other than extensions of trade credit in the ordinary course of business);
(iii) Contracts granting a Lien upon any Company Property or any other asset of the Company or any Company Subsidiary securing indebtedness or other obligations, in each case in excess of $3,000,000;
(iv) Contracts providing for indemnification of any person in excess of $3,000,000 with respect to material liabilities relating to such person’s current or former services as officer, director, consultant and agent to the Company, any of its Subsidiaries, Company Subsidiary or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:predecessor person;
(iv) are a Contract not made in the ordinary course of business in which the amount involved exceeds $1,000,000;
(vi) (A) a Contract with a Governmental Entity in which the amount involved exceeds $3,000,000 or would be required (B) a material license or permit by or from any Governmental Entity;
(vii) currency exchange, interest rate exchange, commodity exchange or similar Contract;
(viii) a Contract for any joint venture, partnership or similar arrangement;
(ix) a lease, sublease or similar agreement with respect to be filed by Company Property in which the amount involved exceeds $3,000,000 per annum;
(x) a Contract under which the Company as or a Company Subsidiary has agreed to purchase or lease any real property or any interest in real property for a purchase price in excess of $3,000,000 or an annual rental in excess of $3,000,000 or to construct any improvements on real property or a leasehold interest in real property for a contract sum in excess of $3,000,000;
(xi) a Contract that is a “material contract” pursuant to as such term is defined in Item 601(b)(10) of Regulation S-K under promulgated by the Securities ActSEC;
(iixii) relate a Contract that materially limits or otherwise materially restricts the right of the Company or any of the Company Subsidiaries to engage or compete in any line of business in any geographic area;
(xiii) a Contract that would be required to be disclosed under Item 404 of Regulation S-K promulgated by the formation SEC; or
(xiv) a Contract other than as set forth above to which the Company or management a Company Subsidiary is a party or by which it or any of any joint venture, partnership, its assets or other similar agreement businesses is bound or subject that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company Subsidiaries or any the use or operation of its Subsidiaries having an outstanding or committed their assets and in which the amount equal to or in excess of involved exceeds $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 3 contracts
Samples: Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Jorgensen Earle M Co /De/)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a3.14(a) of the Company Disclosure Letter Schedule sets forth a list, as of the date of this Agreement, complete and accurate list of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts contracts and agreements to which the Company or any of its Subsidiaries is a party or by which as of the Company, any date of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
this Agreement (i) are in connection with which or would be required pursuant to be filed by which the Company as a “material contract” pursuant and its Subsidiaries paid, in the aggregate during the fiscal year ended October 2, 2012, more than $5,000,000 to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of vendor for merchandise resold by the Company and its Subsidiaries, taken as (ii) that is a whole;
services agreement, equipment lease, logistics agreement, information technology agreement, agreement related to software or intellectual property license (other than any architectural or construction-related contract) in connection with which or pursuant to which the Company and its Subsidiaries paid, in the aggregate during the fiscal year ended October 2, 2012, more than $2,000,000 to any person, (iii) provide any pharmacy-related agreements, including, without limitation, procurement agreements, rebate agreements and network pharmacy service agreements, in connection with which or pursuant to which the Company and its Subsidiaries paid, in the aggregate during the fiscal year ended October 2, 2012, more than $1,000,000 to any person, (iv) related to indebtedness for Indebtedness of borrowed money owed by the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,0002,500,000 individually, other than any Indebtedness such indebtedness between or among any of the Company and any of its Subsidiaries;
, (ivv) are that prohibits or otherwise restricts, in any keepwell material respect, the Company or any of its Subsidiaries from freely engaging in business anywhere in the world, (vi) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC (“Regulation S-K”)) with respect to the Company and its Subsidiaries, (vii) that is an employment or consulting agreement with any executive officer or other employee of the Company or any of its Subsidiaries or member of the Company Board earning an annual salary from the Company or any of its Subsidiaries in excess of $100,000, (viii) that is a joint venture, partnership, limited liability company or other similar agreement under or arrangement in which the Company or any of its Subsidiaries is still a member, partner or shareholder in connection with which the Company or any of its Subsidiaries has directly guaranteed any liabilities a recorded balance (on a GAAP basis) of more than $1,000,000 or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(vix) have been entered into since January 1, 2017, and involve that involves the acquisition from another Person person or disposition to another Person of capital stock or person (other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, than acquisitions or dispositions of investments made pursuant to the Investment Guidelinesinventory, or of suppliesmerchandise, products, propertiesservices, or properties and other assets in the ordinary course of business or business), of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, other equity interests for aggregate annual consideration under such contract (or one-time fees series of related contracts) in excess of $2,000,0001,000,000, in the case of clauses (i) through (ix), other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those that are terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less no more than ninety (90) 30 days’ notice without payment by the Company material liability or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services financial obligation to the Company or any of its Subsidiaries; or
Subsidiaries (xiv) provide for collectively, the outsourcing “Company Material Contracts”). The Company has made available to Parent and Merger Sub a complete and accurate copy of any material function or part of the business of the each Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsMaterial Contract.
(b) As of the date of this Agreement, (i) each Each Company Material Contract is a valid and binding on agreement of the Company or any one of its Subsidiaries, to as the extent such Person is a party thereto, as applicablecase may be, and, to the Knowledge knowledge of the Company, each other party any counterparty thereto, and is in full force and effect, effect except where the failure to be valid, binding, or in full force and effect would not constitute reasonably be expected to have a Company Material Adverse Effect, (ii) . Neither the Company and each nor any of its Subsidiaries, andSubsidiaries nor, to the Knowledge of the Company’s knowledge, any other party theretoto any Company Material Contract is in violation of or in default under (nor does there exist any condition that, has performed all obligations required to be performed by it under each upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, except where such noncompliance which violation or default would not constitute reasonably be expected to result in a Company Material Adverse Effect.
(c) Except for any conflicts, violations, breaches, defaults, terminations, cancellations, accelerations, losses, penalties or Liens, and for any consents or waivers not obtained, that would not reasonably be expected to have a Company Material Adverse Effect or as set forth in Section 3.4(b) of the Company Disclosure Schedule, the execution and delivery of this Agreement by the Company do not, and the consummation by the Company of the transactions contemplated by this Agreement shall not conflict with, or result in any violation or breach of, or constitute (iiiwith or without notice or lapse of time, or both) neither a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under, require a consent or waiver under, constitute a change in control under, require the payment of a penalty under or result in the imposition of any Lien (other than a Permitted Lien) on the Company’s or any of its Subsidiary’s assets under, any of the terms, conditions or provisions of any Company Material Contract.
(d) Neither the Company nor any of its Subsidiaries has received notice entered into any transaction after November 30, 2011 that would be subject to disclosure pursuant to Item 404 of the existence of any event or condition Regulation S-K that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of has not been disclosed in the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectSEC Reports.
Appears in 2 contracts
Samples: Merger Agreement (Harris Teeter Supermarkets, Inc.), Merger Agreement (Kroger Co)
Contracts. (a) Except for this Agreement Contracts previously filed with the SEC and each Contract filed as an exhibit to the Filed SEC DocumentsCompany Plans, Section 4.16(a) 3.18 of the Company Disclosure Letter sets forth identifies each note, bond, mortgage, indenture, contract, agreement, lease, license, permit or other instrument or obligation (each, a list“Contract”) that constitutes a Company Material Contract (as defined below) (other than Company Material Contracts described in (a)(ii) below), as an accurate and complete copy of each of which (other than Company Material Contracts described in (a)(ii) below) has been provided or made available to Parent by the date of this Agreement, of all Material ContractsCompany on the Datasite. For purposes of this Agreement, “Material Contract” means all each of the following Contracts to that is unexpired and effective as of the date of this Agreement and under which the Company or any of its Subsidiaries is has ongoing rights or obligations will be deemed to constitute a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than “Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatMaterial Contract”:
(i) are any Contract that is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10601(b)(10)(i) of Regulation S-K under the Securities ActAct or disclosed by the Company on a Current Report on Form 8-K;
(ii) relate any Contract that, by its terms, requires payments by the Company or any of its Subsidiaries in excess of $300,000 in the aggregate for the remainder of the stated term of such Contract, other than those that are terminable by the Company or any of its Subsidiaries on no more than ninety (90) days’ notice and without liability or financial obligation to the formation Company or any of its Subsidiaries;
(iii) any mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, in each case, in excess of $300,000, other than (A) accounts receivables and payables, and (B) loans to or guarantees for direct or indirect wholly owned Subsidiaries of the Company, in each case, in the ordinary course of business consistent with past practice;
(iv) any Contract limiting, in any respect, the freedom of the Company or any of its Subsidiaries to engage or participate, or compete with any other Person, in the Business in any market or geographic area, or to make use of any material Intellectual Property owned by the Company or any of its Subsidiaries;
(v) (A) any Contract pursuant to which the Company or any of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company or a Subsidiary thereof) any real property that by the Contract’s terms requires payment or receipt of payment, as the case may be, in excess of $300,000, and (B) any executory Contract for the sale or purchase of any real property;
(vi) any Contract with any of the Company’s or any of its Subsidiaries’ officers, directors, employees, principal stockholders or Persons who, to the knowledge of the Company, are controlled thereby, or, to the knowledge of the Company, any member of such Persons’ immediate families, other than (A) any written employment, consulting or management of any joint venture, partnershipservices agreement or other compensation or benefit plan with the Company, or (B) the Company’s or its Subsidiaries’ written employee policies and procedures;
(vii) any Contract pursuant to which any third Person is licensed to use any Intellectual Property owned by the Company or any of its Subsidiaries, and all Contracts pursuant to which the Company or any of its Subsidiaries is licensed to use any Intellectual Property, other similar agreement that is material than Contracts for commercially available off-the-shelf Software licensed to the Company or any of its Subsidiaries for an amount not in excess of $300,000 in any case over the term of the applicable Contract;
(viii) any Contract with any labor union; or
(ix) any Contract obligating the Company to manage any gaming assets on behalf of an unrelated third party.
(b) Each Company Material Contract is valid and in full force and effect, and is enforceable against the Company and its Subsidiaries (and to the knowledge of the Company is enforceable against each other party thereto) in accordance with its terms, except to the extent that they have previously expired in accordance with their terms, or if the failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the operations or business of the Company and its Subsidiaries, taken as a whole;, and subject in all cases to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) Laws governing specific performance, injunctive relief and other equitable remedies.
(iiii) provide for Indebtedness of Neither the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of nor its Subsidiaries has directly guaranteed materially violated or materially breached, or committed any liabilities or obligations of another Person or under which another Person has directly guaranteed material default under, any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 Material Contract; (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(vii) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge knowledge of the Company, each no other party thereto, and is in full force and effect, except where the failure to be valid, bindingPerson has materially violated or materially breached, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Companycommitted any default under, any other party thereto, has performed all obligations required to be performed by it under each Company Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, ; and (iii) neither the Company nor any of its Subsidiaries has received any written notice or, to the knowledge of the existence of Company, other communication regarding any event actual or condition that constitutespossible material violation or material breach of, oror default under, after notice or lapse of time or both, will constitute, a default on the part of the any Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Eldorado Resorts, Inc.), Merger Agreement (Isle of Capri Casinos Inc)
Contracts. (a) Except (x) as set forth on Section 3.19 of the Disclosure Letter, (y) for this Agreement and each Contract Contracts filed as an exhibit exhibits to Company SEC Reports (“Filed Contracts”) or (z) for the Filed SEC DocumentsEmployee Benefit Plans, Section 4.16(a) neither the Company nor any of its Subsidiaries is a party to or bound by any of the Company Disclosure Letter sets forth a list, following Contracts as of the date hereof:
(i) Any Contract which is a “material contract” (as such term is defined in Item 601(b)(10) of this AgreementRegulation S-K promulgated under the Securities Act);
(ii) Any Contract which materially limits the ability of the Company or any of its Subsidiaries to conduct its business for the benefit of a third party, or which, following the consummation of all Material Contracts. For purposes the Merger, would materially limit the ability of this Agreementthe Surviving Company to conduct its business, or that purports to restrict in any material respect the right of the Company or any of its Subsidiaries to compete with any Person or operate in any geographic area or location in which any Company or any Subsidiary of the Company may conduct business (other than (x) confidentiality agreements entered into by the Company or any of its Subsidiaries in the ordinary course of business and (y) Investment Advisory Arrangements containing any such provisions in the ordinary course of business that address the allocation of investment opportunities or the formation of successor funds);
(iii) Any Contract that contains an exclusivity provision, “Material Contractmost favored nation” means all Contracts provision, provisions granting a right of first refusal, a right of first negotiation or similar rights or any similar term for the benefit of a third party, in each case involving revenues or expenses of the Company or any of its material Subsidiaries of more than $5,000,000 in the fiscal year ended December 31, 2015;
(iv) Any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries is would be required to purchase or sell, as applicable, any equity interests of any Subsidiary of the Company or Fund, or which grant a party right to sell to the Company or by purchase from the Company any material asset (other than in the ordinary course of business);
(v) Any Contract which contains a “clawback” or similar undertaking requiring the Company, reimbursement or refund of any fees (whether performance based or otherwise) paid to the Company or any of its Subsidiaries;
(vi) Any Contract relating to “soft-dollar” arrangements (i.e., providing for benefits relating to commissions generated from financial transactions executed by broker-dealers on behalf of any Funds);
(vii) Any Contract for borrowed money (whether current, short-term or long-term and whether secured or unsecured, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangementsfinancial guarantee) that:
(i) are or would be required to be filed incurred by the Company as a “material contract” or any of its Subsidiaries or pursuant to Item 601(b)(10which the Company or any of its Subsidiaries has any obligations as guarantor, surety, co-signer, endorser or co-maker in respect of any obligation of any Person, or any capital maintenance, keep well or similar agreements or arrangements, other than (A) Contracts solely among the Company or any of Regulation S-K under the Securities Actits wholly owned Subsidiaries and/or (B) Contracts not involving amounts in excess of $500,000;
(iiviii) relate to the formation Any Contract which is a mortgage, security agreement, capital lease or management of similar agreement, in each case, that creates or grants a Lien on any joint venture, partnership, property or other similar agreement assets that is are material to the business of the Company and its Subsidiaries, taken as a whole;
(iiiix) provide for Indebtedness of Any Contract relating to any swap, forward, futures, warrant, option, cap, floor or collar financial contract, or any other interest-rate, commodity price, equity value or foreign currency protection contract or other hedging or derivative transaction involving net revenues or expenses by the Company or any of its Subsidiaries having an outstanding or committed amount equal to or of more than $5,000,000 in excess of $10,000,000the fiscal year ended December 31, other than any Indebtedness between or among any of the Company and any of its Subsidiaries2015;
(ivx) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Any Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the restricts payment of dividends or any distributions in respect of the shares or capital stock equity interests of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viiixi) involve or could reasonably be expected Any Contract pursuant to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of which the Company or any of its Subsidiaries after has continuing material indemnification obligations or other contingent payments to any Person that would reasonably be expected to result in payments in excess of $1,000,000, except for (x) any vendor or content licensing Contract entered into in the Effective Timeordinary course of business or (y) non-disclosure agreements;
(xxii) contain provisions that prohibit Any Contract, except for this Agreement, relating to the acquisition or disposition of any business by the Company or its Subsidiaries (whether by merger, sale of stock, sale of assets or otherwise) or pursuant to which any material earn-out, deferred or contingent payment obligations remain outstanding (excluding any such Contract for which all such rights and obligations have been satisfied);
(xiii) Any Contract entered into since January 1, 2014 involving any resolution or settlement of any actual or threatened Action (A) with a value of greater than $1,000,000 or (B) which imposes material continuing obligations on the Company or any of its Affiliates from competing Subsidiaries or that provides for any continuing injunctive or other non-monetary relief, in any material line of business or grant a right of exclusivity each case, other than confidentiality obligations;
(1) Any Contract pursuant to any Person that prevents which the Company or any Affiliate of its Subsidiaries has been granted any option, license or similar right relating to the Intellectual Property of a third party, in each case that is material to the business or assets of the Company from entering and its Subsidiaries, taken as a whole (but excluding any non-exclusive “click-through” or similar end-user license for commercially available software), and (2) any Contract pursuant to which any option, license or similar right relating to Company-Owned IP has been granted to a third party, in each case that is material territoryto the business or assets of the Company and its Subsidiaries, market, or field or freely engaging in business anywhere taken as a whole (but excluding any non-exclusive licenses granted in the worldordinary course of business);
(xv) Any other Contract (or group of related Contracts), other except for Investment Advisory Arrangements, the performance of which requires aggregate payments to or from the Company or any of its Subsidiaries during the 12 month period ending June 30, 2016 in excess of $5,000,000 that is not terminable with less than Contracts that can be terminated sixty (including such restrictive provisions60) days’ notice without material penalty by the Company or any of its Subsidiaries on less than ninety or that is otherwise material to the Company and its Subsidiaries, taken as a whole;
(90xvi) days’ notice without payment by Any Contract between the Company or any of its Subsidiaries on the one hand, and any affiliate of the Company (other than any Subsidiary of the Company of any material penaltyCompany) on the other hand;
(xixvii) involve the retention of (A) any independent contractorInvestment Advisory Arrangement or any Contract which sets forth, consultantgoverns or in any way modifies any fee, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration charge or other policy or claims administration services with respect to any Insurance Contracts, or investment management services amount payable to the Company or any of its Subsidiaries; or
Subsidiaries in connection with such Investment Advisory Arrangement, including any fee, revenue or expense sharing, settlement, cap, discount, waiver or reimbursement or similar arrangement with any Person or (xivB) provide for the outsourcing of any material function or part of the business of Fund Document requiring the Company or any of its Subsidiaries that to invest in any Person; or
(xviii) Any Fund Document containing change in control provisions or “key person” provisions. Each such Contract in clauses (i) through (xviii) above and each Filed Contract is necessary for the conduct of the business of the Company and its Subsidiaries referred to herein as currently conducted, other than managing agency agreements or managing general underwriting agreementsa “Material Contract”.
(b) As The Company has made available or provided to Parent or its Representatives copies that are true and correct in all material respects of the date of this Agreement, all Material Contracts.
(ic) each Each Material Contract is a valid and binding on obligation of the Company or any one of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable against the other party or parties thereto in accordance with its terms (except to the extent that any Material Contract has expired in accordance with its terms), except where the failure to be validas would not, binding, individually or in full force and effect would not constitute the aggregate, have a Company Material Adverse Effect, subject to (iia) the effect of bankruptcy, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting the enforcement of creditors’ rights generally, (b) general equitable principles (whether considered in a proceeding in equity or at law) and (c) an implied covenant of good faith and fair dealing. Neither the Company and each nor any Subsidiary of its Subsidiariesthe Company is in breach of or default under the terms of any Material Contract where such breach or default will have, andindividually or in the aggregate, to a Company Material Adverse Effect. To the Knowledge of the Company, any no other party thereto, has performed all obligations required to be performed by it any Material Contract is in material breach of or default under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence terms of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, Contract except as would not constitute have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Cifc LLC)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit Unless set forth on the Exhibit List to the Filed SEC DocumentsCompany's Annual Report on Form 10K-SB for the year ended December 31, 2001, Section 4.16(a3.28(a) of the Company Disclosure Letter sets Schedule (with paragraph references corresponding to those set forth below) contains a list, as true and complete list of each of the date following Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Parent prior to the execution of this Agreement), of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which the Company, any of its Subsidiaries, or any of their respective properties Assets and Properties is bound:
(A) all Contracts (excluding Benefit Plans) providing for a commitment of employment or assets is bound consultation services for a specified or unspecified term or otherwise relating to employment or the termination of employment, the name, position and rate of compensation of each Person party to such a Contract and the expiration date of each such Contract; and (B) any written or unwritten representations, commitments, promises, communications or courses of conduct (excluding Benefit Plans and any such Contracts referred to in clause (A)) involving an obligation of the Company or any Company Subsidiary to make payments in any year, other than with respect to salary or incentive compensation payments in the ordinary course of business, to any employee exceeding $5,000 or any group of employees exceeding $50,000 in the aggregate;
(2) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company Plans and insuranceor any Company Subsidiary to engage in any business activity or compete with any Person or prohibiting or limiting the ability of any Person to compete with the Company or any Company Subsidiary;
(3) all partnership, reinsurancejoint venture, or retrocession treaties or agreements, slips, binders, cover notes, stockholders' or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities ActContracts with any Person;
(ii4) relate all Contracts relating to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or Company Subsidiary in excess of $10,000,000, other than any Indebtedness between 25,000 or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which to preferred stock issued by the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)Subsidiary;
(v5) have been entered into since January 1all Contracts with distributors, 2017dealers, manufacturer's representatives, sales agencies, licensees or Governmental Entities;
(6) all Contracts relating to (A) the future disposition or acquisition of any Assets and involve the acquisition from another Person Properties, other than dispositions or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of suppliesconsistent with past practice, products, properties, and (B) any merger or other assets that are obsoletebusiness combination;
(7) all Contracts between or among the Company or any Company Subsidiary, worn outon the one hand, surplusand any officer, director or no longer used or useful in the conduct of business Affiliate of the Company or any of its SubsidiariesCompany Subsidiary (other than the Company or any Company Subsidiary), on the other hand;
(vi8) all collective bargaining or similar labor Contracts;
(9) prohibit all Contracts that (A) limit or contain restrictions on the payment of dividends or distributions in respect of the shares or capital stock ability of the Company or any Company Subsidiary to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its Subsidiariescapital stock, prohibit to incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties, to change the pledging lines of the shares business in which it participates or capital stock of engages or to engage in any business combination or (B) require the Company or any Company Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition; and
(10) all Contracts for the license of Intellectual Property for sublicense or use by any Governmental Entity.
(11) all other Contracts (other than Benefit Plans, leases disclosed in the Company SEC documents and insurance policies listed in Section 3.30 of the Company Disclosure Schedule) that (A) involve the payment or prohibit potential payment, pursuant to the issuance terms of any guarantee such Contract, by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any Company Subsidiary of its Subsidiaries, more than $25,000 annually and (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in each case, for aggregate annual any material cost or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed penalty to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsSubsidiary.
(b) As Each Contract required to be disclosed in Section 3.28(a) of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and Disclosure Schedule is in full force and effecteffect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms, of each party thereto; and except where the failure to be valid, binding, or as disclosed in full force and effect would not constitute a Material Adverse Effect, (iiSection 3.28(b) of the Company and each of its SubsidiariesDisclosure Schedule, andneither the Company, any Company Subsidiary nor, to the Knowledge knowledge of the Company, any other party theretoto such Contract is, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries or has received notice that it is, in violation or breach of the existence of or default under any event such Contract (or condition that constitutes, or, after with notice or lapse of time or both, will constitute, a would be in violation or breach of or default on the part under any such Contract) in any material respect.
(c) Except as disclosed in Section 3.28(c) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary is a party to or bound by any of its Subsidiaries under Contract that has been or could reasonably be expected to have, individually or in the aggregate with any Material Contractother such Contracts, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Scientific Games Corp), Merger Agreement (Mdi Entertainment Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) 3.15 of the Company Disclosure Letter sets forth identifies each note, bond, mortgage, indenture, contract, agreement, lease, license, permit or other instrument or obligation (each, a list“Contract”) that constitutes a Company Material Contract (as defined below), as an accurate and complete copy of each of which has been provided or made available to Parent by the date of this Agreement, of all Material ContractsCompany. For purposes of this Agreement, “Material Contract” means all Contracts to each of the following Contracts, other than those set forth in clause (ix) below, that is unexpired and effective as of the date of this Agreement and under which the Company or any of its Subsidiaries is has ongoing rights or obligations will be deemed to constitute a party or “Company Material Contract” (it being understood that the Contracts set forth in clause (ix) shall not be deemed to be Company Material Contracts solely by which virtue of being listed in Section 3.15(a)(ix) of the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:Disclosure Letter):
(i) are any Contract that is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;Act or disclosed by the Company on a Current Report on Form 8-K;
(ii) relate any Contract that, by its terms, requires payments by the Company or any of its Subsidiaries in excess of $2,500,000 on an annual basis in the aggregate for the remainder of the stated term of such Contract, other than (A) those that are terminable by the Company or any of its Subsidiaries on no more than ninety (90) days’ notice and without any liability or financial obligation to the formation Company or management any of its Subsidiaries, or (B) purchase orders or quotations that are entered into in the ordinary course of business;
(iii) any mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit where the Company or one of its Subsidiaries is the borrower or receipt of credit, in excess of $1,000,000, other than (A) accounts receivables and payables, (B) loans by the Company or any of its direct or indirect Subsidiaries to, or guarantees by any of the foregoing for, direct or indirect wholly-owned Subsidiaries of the Company or (C) letters of credit or bonds or agreements related thereto issued by or for the benefit of the Company or one of its Subsidiaries to Governmental Entities in connection with workers compensation Laws, in each case, in the ordinary course of business;
(iv) any Contract (A) limiting or purporting to limit, in any respect, the freedom of the Company or any of its Subsidiaries to engage or participate, or compete with any other Person, in the business currently conducted by the Company and its Subsidiaries or in any market or geographic area, or to make use of any joint venturematerial Intellectual Property owned by the Company or any of its Subsidiaries; (B) prohibiting the Company or any of its Subsidiaries from engaging in any business with any Person or levying a fine, partnershipcharge or other payment for doing so; (C) in which the Company or its Subsidiaries provides “most favored nation,” “exclusivity,” preferential pricing, priority or similar provisions; (D) containing a purchase option; or (E) containing any non-solicit or non-hire provision restricting the Company or its Subsidiaries, other than any Contracts entered into in the ordinary course of business by the Company or any of its Subsidiaries with consultants pursuant to which the Company or its Subsidiary has agreed not to solicit or hire any employees of the consultant, provided that such Contract does not bind Affiliates of the Company that are not Subsidiaries of the Company;
(v) any Contract with any of the Company’s or any of its Subsidiaries’ Affiliates, officers, directors, employees, or principal stockholders (and their respective Affiliates), or any immediate family member of, or Person who, to the Knowledge of the Company, is controlled by, any such Persons, other than (A) any written employment, agreement or other benefit plan with the Company, (B) the Company’s or its Subsidiaries’ written employee policies and procedures or (C) any Contracts that were sourced by Insight Portfolio Group, LLC but were entered into directly by the Company or one of its Subsidiaries;
(vi) any Contract pursuant to which any Third Party is licensed (including pursuant to a covenant not to xxx) to use any Owned Company Intellectual Property, and all Contracts pursuant to which the Company or any of its Subsidiaries is licensed (including pursuant to a covenant not to xxx) to use any Intellectual Property owned by another Person, other than Contracts for (A) commercially available off-the-shelf Software licensed to the Company or any of its Subsidiaries through a “clickwrap” or “shrinkwrap” license or other similar agreement that standard terms and conditions for a one-time payment amount or aggregate yearly fee not in excess of $300,000 in any case and (B) the non-exclusive licensing or cross-licensing of Intellectual Property to customers in the ordinary course of business.
(vii) any Contract obligating the Company to manage any assets on behalf of a Third Party or pursuant to which any Third Party manages any assets or properties of the Company or its Subsidiaries;
(viii) any Contract that, by its terms, is reasonably expected to result in payments by the Company or any of its Subsidiaries in excess of $100,000 in the aggregate for the remainder of the stated term of such Contract and (A) is with a sole source supplier of material products or services which products or services are not available from an alternative supplier on commercially reasonable terms and upon reasonable notice or (B) requires the purchase of all or a material portion of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given Third Party, in either case, which product or service is material to the business of the Company and its Subsidiaries, taken as a whole;
(iiiix) provide any Contract relating to the Company’s railcar backlog, as such backlog exists as of the date of this Agreement, other than Contracts entered into in the ordinary course of business for Indebtedness the storage of railcars or rolling stock that are not material;
(x) any Contract entered into since January 1, 2017 (A) relating to the disposition or acquisition of assets, other than inventory or supplies in the ordinary course of business, the aggregate value of which, in each case, is not in excess of $500,000 by the Company or any of its Subsidiaries having an outstanding Subsidiaries; or committed amount equal (B) pursuant to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed or may acquire any liabilities or obligations of another ownership interest in any other Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other business enterprise other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(viixi) restrict any Contract not in the ordinary course of business that is a settlement or grant rights similar agreement to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by resolve a dispute that (xA) imposes solely monetary obligations on the Company or any of its Subsidiaries after the date of this Agreement reasonably expected to a third Person or be in excess of $1,000,000, (yB) a third Person to imposes any non-monetary obligations on the Company or any of its Subsidiaries after the date of this Agreement, or (C) where a claim was made against the Company, does not include a full and complete release of the Company without admission of any liability;
(xii) any Contract between the Company or its Subsidiaries, in each caseon the one hand, and any third Person, on the other hand, that creates a joint venture, limited liability company or partnership;
(xiii) any Contract providing for aggregate annual indemnification or one-time fees in excess guarantee of $2,000,000the obligations of any other Person that would be material to the Company and its Subsidiaries, taken as a whole, other than commercially available “off-the-shelf” software licenses under which software is licensed any such Contracts involving railcar purchase, leasing, management, service, storage or warranty agreements or entered into in the ordinary course of business;
(xiv) any Contract entered into with a federal Governmental Entity, but excluding any Contract with a counterparty that may be a subcontractor to a Governmental Entity;
(xv) any financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities;
(xvi) any voting agreement or registration rights agreement relating to any securities of the Company;
(xvii) any mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien, other than a Permitted Lien, on any material property or assets of the Company or any of its Subsidiaries;
(viiixviii) involve any customer or could reasonably be expected to involve aggregate payments client Contract (or receipts by or to it and/or its Subsidiaries series of related Contracts) (other than Lease Agreements) that involved revenues in fiscal year 2017 in excess of $10,000,000 US$5,000,000 or that is reasonably likely to involve revenues in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary fiscal year 2018 in excess of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the TransactionsUS$5,000,000;
(ixxix) would reasonably be expected to, individually any supply or in the aggregate, prevent, materially delay, vendor Contract (or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business series of the Company or any of its Subsidiaries after the Effective Time;
(xrelated Contracts) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) involved payments by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment in fiscal year 2017 in excess of US$5,000,000 or that is reasonably likely to involve payments by the Company or any Subsidiary of the Company its Subsidiaries in fiscal year 2018 in excess of any material penaltyUS$5,000,000;
(xixx) involve any Contract that restricts or otherwise limits the retention payment of any independent contractor, consultant, dividends or agency for the provision of services to other distributions on equity securities by the Company with annualized fees in excess of $300,000;or any Subsidiary; and
(xiixxi) constitute collective bargaining agreements;
(xiii) involve any Contract under which the provision Company or any Subsidiary grants any right of material third-party administration first refusal, right of first offer or other policy or claims administration services similar right with respect to any Insurance Contractsmaterial assets, rights or investment management services to properties of the Company or any of its Subsidiaries; or.
(xivb) provide for the outsourcing of any material function or part of the business of the Each Company or any of its Subsidiaries that Material Contract is necessary for the conduct of the business of valid and in full force and effect, and is enforceable against the Company and its Subsidiaries (and to the Knowledge of the Company is enforceable against each other party thereto) in accordance with its terms, except if the failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries taken as currently conducteda whole, subject in all cases to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) Laws governing specific performance, injunctive relief and other than managing agency agreements or managing general underwriting agreementsequitable remedies.
(bi) As Neither the Company nor its Subsidiaries has materially violated or materially breached, or committed any material default under, any Company Material Contract; (ii) to the Knowledge of the date of this AgreementCompany, no other Person has materially violated or materially breached, or committed any material default under, any Company Material Contract; and (iiii) each Material Contract is valid and binding on neither the Company or nor its Subsidiaries has received any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, andwritten notice or, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, bindingcommunication regarding any actual or possible material violation or material breach of, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Companymaterial default under, any other party thereto, has performed all obligations required to be performed by it under each Company Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Icahn Enterprises Holdings L.P.), Merger Agreement (American Railcar Industries, Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as As of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or neither Parent nor any of its Subsidiaries is a party to or bound by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatContract:
(i) are or that would be required to be filed by Parent as an exhibit to the Company as a “material contract” Form F-4 pursuant to Item 601(b)(10601(b)(2), (4), (9) or (10) of Regulation S-K under the Securities Act, other than any Parent Plans;
(ii) relate constituting or relating to the formation formation, operation, management or management control of any material partnership, joint venture, partnership, collaboration or limited liability company agreement (other similar than any such agreement that is material to the business solely between or among Parent and any of the Company and its wholly owned Subsidiaries, taken as a whole);
(iii) provide for Indebtedness relating to Indebtedness, whether incurred, assumed, guaranteed or secured by any asset, with a principal amount (including the amount of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or undrawn but available commitments thereunder) in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries30,000,000;
(iv) are with any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)Governmental Authority;
(v) have been entered into since January 1, 2017, and involve (A) relating to the acquisition from another Person or disposition to another Person disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another any Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions 30,000,000 or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company which Parent or any of its Subsidiaries)Subsidiaries has continuing “earn out” or other similar contingent payment obligations after the date hereof in excess of $30,000,000; or (B) that gives any Person the right to acquire any assets of Parent or its Subsidiaries (excluding ordinary course commitments to purchase goods, products and off-the- shelf Intellectual Property) after the date hereof with a total consideration of more than $30,000,000;
(vi) prohibit the payment that is a stockholders, investors rights, registration rights, or relationship agreement or similar arrangement or agreement with any stockholder of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company Parent or any of its Subsidiaries;
(viiivii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess that is a Contract not of $10,000,000 in a type (disregarding any twelve month perioddollar thresholds, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, materiality or other advisors qualifiers, restrictions or other limitations applied to such Contract type) described in connection with the Transactions;
foregoing clauses (ixi)through (vi) and that has or would reasonably be expected to, individually either pursuant to its own terms or in together with the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company terms of any material penalty;
(xi) related Contracts, involve the retention of any independent contractor, consultant, net payments or agency for the provision of services to the Company with annualized fees receipts in excess of $300,000;
20,000,000 in any year; (xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part Contracts of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries type described in clauses (i) through (vii) above being referred to herein as currently conducted, other than managing agency agreements or managing general underwriting agreements“Parent Material Contracts”).
(b) As Parent has made available a complete and correct copy of each Parent Material Contract, as amended as of the date of this Agreement. Except with respect to any Contract that has previously expired in accordance with its terms, been terminated, restated or replaced, (i) each Parent Material Contract (and each Contract entered into after the date of this Agreement that would have been a Parent Material Contract if such Contract had been in effect as of the date of this Agreement) is valid and binding on the Company or Parent and any of its Subsidiaries, Subsidiaries to the extent such Person is a party thereto, as applicable, and, and to the Knowledge of the CompanyParent, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, binding or in full force and effect would not constitute not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse EffectEffect and except as may be limited by the Bankruptcy and Equity Exception, (ii) the Company Parent and each of its Subsidiaries, and, to the Knowledge of the CompanyParent, any other party thereto, has performed all obligations required to be performed by it under each Parent Material ContractContract (and each Contract entered into after the date of this Agreement that would have been a Parent Material Contract if such Contract had been in effect as of the date of this Agreement), except where such noncompliance nonperformance would not constitute not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, (iii) neither the Company Parent nor any of its Subsidiaries has received written notice of the existence of any event breach or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company Parent or any of its Subsidiaries under any Parent Material ContractContract (and each Contract entered into after the date of this Agreement that would have been a Parent Material Contract if such Contract had been in effect as of the date of this Agreement), except where such default would not constitute not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, Effect and (iv) to the Knowledge of Parent, there are no events or conditions that which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under any Parent Material Contract (and each Contract entered into after the date of this Agreement that would have been a Parent Material Contract if such Material ContractContract had been in effect as of the date of this Agreement), except as would not constitute not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.
Appears in 2 contracts
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC DocumentsAgreement, Section 4.16(a3.13(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which and the Company or any of its Subsidiaries is a party or by which the Companyhas made available to Parent true and complete copies, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatof:
(i) are or each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate each Contract to which the formation Company or management of any joint venture, partnership, or other similar agreement Company Subsidiary is a party that is material to (A) materially restricts the business ability of the Company and its Subsidiariesor any Company Subsidiary to compete in any business or with any Person in any geographical area, taken as (B) requires the Company or any Company Subsidiary to conduct any business on a whole“most favored nations” basis with any third party, (C) grants a third party development rights relating to any Company Product, (D) requires the Company or any Company Subsidiary to purchase a minimum quantity of goods or supplies relating to any Company Product in favor of any third party or (E) provides for “exclusivity” or any similar requirement in favor of any third party;
(iii) provide each Contract with a Significant Customer or Significant Supplier;
(iv) other than any Company Benefit Plan, any Contract that can be terminated for Indebtedness convenience on notice by the Company, customer and channel partner agreements and software maintenance agreements entered into in the ordinary course of business, each Contract to which the Company or any Company Subsidiary is a party that provides for recurring annual minimum payments or receipts in excess of $500,000;
(v) each Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money or any financial guaranty;
(vi) each Contract to which the Company or any Company Subsidiary is a party involving in excess of $500,000 that provides for the acquisition or disposition of any assets or any businesses (whether by merger, sale of stock, sale of assets or otherwise) that (A) has not yet been consummated or (B) has outstanding any purchase price adjustment, “earn-out”, material indemnification, payment or similar obligations on the part of the Company or any Company Subsidiary;
(vii) each Contract to which the Company or any Company Subsidiary is a party pursuant to which the Company or any Company Subsidiary has continuing guarantee, “earn-out” or similar contingent payment obligations (other than indemnification obligations provided for in the ordinary course of business), including (A) milestone or similar payments, including upon the achievement of regulatory or commercial milestones or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company, in each case that would result in payments in excess of $250,000;
(viii) each Contract to which the Company or any Company Subsidiary is a party that obligates the Company or any Company Subsidiary to make any capital commitment, loan or capital expenditure in an amount in excess of $500,000;
(ix) each Contract to which the Company or any Company Subsidiary is a party, other than with respect to any partnership that is wholly owned by the Company or such Company Subsidiary, that relates to the formation, creation, operation, management or control of any legal partnership or any joint venture entity pursuant to which the Company or such Company Subsidiary has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(x) each Contract with a Governmental Entity involving payments to the Company in excess of $750,000 during the 2021 fiscal year;
(xi) each sales agency, distribution, international or domestic sales representative, reseller or similar Contract involving payments to the Company or any Company Subsidiary in excess of $500,000 during the 2021 fiscal year;
(xii) each Contract that creates or would create a Lien (other than a Permitted Lien) on any material asset or property of the Company or any Company Subsidiary;
(xiii) each hedging, derivative or similar Contract (including interest rate, currency or commodity swap agreements, cap agreements, collar agreements and any similar Contract designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices), including the Capped Call Documentation;
(xiv) each Contract which provides for a loan or advance of any amount to any employee of the Company or any temporary agency employee, consultant or other independent contractor of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000100,000 individually, other than commercially available “off-the-shelf” software licenses under the ordinary course of business consistent with past practice;
(xv) each stockholders’, investors rights’, registration rights or similar Contract to which software is licensed to the Company or any of its SubsidiariesCompany Subsidiary is a party (excluding the Company Stock Plans and any Contracts governing Company Stock Options, Company RSUs, Company PSUs or participation in the Company ESPP);
(viiixvi) involve each lease, sublease, license or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries similar use and occupancy Contract (including any amendments, extensions and modifications thereto, each, a “Lease”) for annual rents in excess of $10,000,000 in 100,000 pursuant to which the Company or any twelve month periodCompany Subsidiary leases, subleases or otherwise uses or occupies any real property from any other Person (whether as a tenant, subtenant or pursuant to other occupancy arrangements) (collectively, the “Leased Real Property”);
(xvii) each Intellectual Property Agreement;
(xviii) each Contract with or binding upon the Company, any Company Subsidiary or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xix) each Contract providing for the employment, engagement, retention or termination of any Person on a full-time, part-time, material independent contractor, temporary or other basis or otherwise providing compensation or other benefits to any officer, director, employee or material independent contractor, other (x) than those Contracts terminable on by the Company for any reason upon less than ninety (90) 90 days’ notice without payment incurring any liability (other than any Company Benefit Plan or as required by applicable Law). Each such Contract described in clauses (i) through (xix) above is referred to herein as a “Material Contract” and shall include in addition to any such Contract to which the Company or any Company Subsidiary is a party any of the Company foregoing Contracts to which any of any material penalty, (y) any Company Lease, the assets or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business properties of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsare bound.
(b) As Each of the date of this AgreementMaterial Contracts is valid, binding and enforceable (iexcept as such enforceability may be limited by the Bankruptcy, Equity and Indemnity Exception) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party theretoCompany Subsidiary, as applicablethe case may be, and, to the Knowledge knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure for such failures to be valid, binding, binding or enforceable or to be in full force and effect as have not had, and would not constitute reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) . Except as would not be material to the Company and each of its the Company Subsidiaries, andtaken as a whole, (i) there is no violation or breach of or default under any Material Contract by the Company or any Company Subsidiary or, to the Knowledge knowledge of the Company, any other party thereto, and no event has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance occurred that with the lapse of time or the giving of notice or both would not constitute a Material Adverse Effectdefault thereunder by the Company or, to the knowledge of the Company, any other party thereto and (iiiii) neither the Company nor any of its Subsidiaries Company Subsidiary has received notice of the existence of waived, failed to enforce or assigned any event rights or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries benefits under any Material Contract. As of the date of this Agreement, except where such default would not constitute a no party to any Material Adverse Effect, and (iv) there are no events Contract has given any written notice of termination or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part cancellation of any counterparty under such Material Contract or that it intends to seek to terminate or cancel any Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Stryker Corp), Merger Agreement (Vocera Communications, Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) The Company Schedule of the Company Disclosure Letter Exceptions sets forth a list, list (as of the date of this Agreement) of (i) each contract which is likely to involve payment or receipt of annual consideration of more than $100,000, in the aggregate, over the remaining term of such contract, (ii) all contracts or indentures relating to borrowed money or other indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any of its subsidiaries, including the amount of funded indebtedness for borrowed money outstanding as of the date hereof under any such contract or indenture, other than contracts relating to indebtedness other than indebtedness for borrowed money in an amount not in excess of $100,000 in the aggregate for all such contracts, (iii) all joint venture or other similar agreements to which the Company or any of its subsidiaries is a party, (iv) all lease agreements to which the Company or any of its subsidiaries is a party with annual lease payments in excess of $100,000, (v) standby letter of credit obtained by the Company or any of its Subsidiaries has in an amount in excess of $250,000 and contracts under which the Company or any of its Subsidiaries has advanced or loaned any other Person or entity an amount in excess of $100,000, (vi) contracts or groups of related contracts with the same party or group of parties requiring the payment or receipt of $100,000 or more per year which are not cancelable by the Company on 30 days’ or less notice without premium or penalty or other cost of any kind or nature, (vii) warranty agreements with respect to the Company’s or its Subsidiaries’ services rendered or products sold or leased, other than pursuant to the Company’s standard warranty, (viii) agreements under which the Company has granted any person or entity registration rights (including, without limitation, demand and piggy-back registration rights), (ix) agreements under which the Company or any of its Subsidiaries has granted any right of first refusal or similar right in favor of any third party with respect to any material portion of the Company’s or any of its Subsidiaries’ properties or assets and (x) contracts containing non-compete covenants by or to the Company or any of its Subsidiaries (the items described in clauses (i) through (x) hereof, collectively, the “Material Contracts”). For purposes The Company has made available to Parent a correct and complete copy of this Agreementeach Material Contract listed in Section 4.14(a) of the Company Schedule of Exceptions.
(b) Except as disclosed in the Company Schedule of Exceptions, “(i) neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party, is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Material Contract” means all Contract or Company License Agreement to which it is a party, except for such defaults that would not reasonably be expected to have a Company Material Adverse Effect and (ii) to the Company’s Knowledge, there has not occurred any event that, with the lapse of time or giving of notice or both, would constitute such a default. All Material Contracts to which the Company or any of its Subsidiaries is a party party, or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insuranceare bound, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) and enforceable against the Company or any such Subsidiary, as the case may be, and each of its Subsidiaries, and, to the Knowledge Company’s Knowledge, the other parties thereto in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to creditors’ rights generally and to the general principles of equity.
(c) Except as set forth in the Company Schedule of Exceptions, no Material Contract or Company License Agreement will, by its terms, terminate as a result of the Company, Transactions or require any other consent from any party thereto, has performed all obligations required thereto in order to be performed by it under each Material Contractremain in full force and effect immediately after the Effective Time, except where such noncompliance termination would not constitute reasonably be expected to have a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
(d) Except as set forth in Section 4.14(d) of the Company Schedule of Exceptions, there are no contracts or agreements of the Company having terms or conditions which would have a Company Material Adverse Effect or that materially impair the ability of the Company to conduct its business as currently conducted or would reasonably be expected to materially impair Parent’s ability to conduct the Company’s business after the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Kintera Inc), Merger Agreement (Blackbaud Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a3.15(a) of the Company Disclosure Letter sets forth a listforth, as of the date of this Agreement, a true, correct and complete list of all Material Contracts. For purposes each of the following Contracts (other than any Company Plan and any Contract filed as an exhibit to the Company SEC Documents filed prior to the date of this Agreement, “Material Contract” means all Contracts ) to which the any Acquired Company or any of its Subsidiaries is a party or by which the Company, any Acquired Company or any of its Subsidiaries, assets or any of their respective properties businesses is subject or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatbound:
(i) any Contract that involves the obligation or potential obligation of any of the Acquired Companies to make any “earn-out” or similar payments to any Person relating to any prior acquisition made by an Acquired Company;
(ii) any indenture, loan or credit agreement, security agreement, guarantee, note, mortgage, letter of credit, reimbursement agreement or other Contract, in any such case relating to indebtedness or of any Acquired Company having an outstanding principal amount in excess of twenty-five million ($25,000,000), in the aggregate (except for such indebtedness between the Acquired Companies or guaranties by any Acquired Company of indebtedness of any Acquired Company);
(iii) any Contract relating to any joint venture or partnership material to the Acquired Companies, taken as a whole;
(iv) any material Contract with a supplier or vendor of any of the Acquired Companies to which any of the Acquired Companies made payments of more than ten million dollars ($10,000,000) during the fiscal year ended December 31, 2020, other than (A) any such Contract that is terminable by any Acquired Company upon notice of ninety (90) days or less without penalty and (B) purchase orders in the ordinary course of business;
(v) any material Contract with a customer of any of the Acquired Companies from which any of the Acquired Companies received payments of more than seventeen million dollars ($17,000,000) during the fiscal year ended December 31, 2020, other than (A) any such Contract that is terminable by any Acquired Company upon notice of ninety (90) days or less without penalty and (B) purchase orders in the ordinary course of business;
(vi) any material collective bargaining agreement or similar agreement with any labor union, labor organization or works council;
(vii) any Contract that grants any rights of first refusal or rights of first offer to any Person with respect to any asset of any of the Acquired Companies having value in excess of ten million dollars ($10,000,000), other than rights of first refusal or rights of first offer with respect to minority ownership interests in other Persons;
(viii) any Contract that is a settlement with any Governmental Entity or any other Person to which any of the Acquired Companies, is subject to ongoing obligations that are material to the Acquired Companies, taken as a whole;
(ix) any Contract purporting to indemnify or would be required hold harmless any director, officer or employee of any of the Acquired Companies (other than the Company Charter, the Company Bylaws and the organizational documents of the Company’s Subsidiaries);
(x) any Contract that is disclosed by the Company pursuant to be Item 404 of Regulation S-K under the Securities Act; and
(xi) any stockholder, voting trust, or similar Contract relating to the voting of Company Common Stock or other equity interests of the Company. Each Contract entered into prior to the date of this Agreement that is filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii, excluding those compensatory plans described in Item 601(b)(10)(iii) relate to of Regulation S-K under the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017Securities Act, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries listed as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this AgreementAgreement in Section 3.15(a) of the Company Disclosure Letter, a “Company Material Contract.”
(ib) each Each Company Material Contract is valid and binding on the each Acquired Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, thereto and, to the Knowledge knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure in each case for such failures to be valid, binding, valid and binding or to be in full force and effect that, individually or in the aggregate, would not constitute reasonably be expected to have, a Company Material Adverse Effect. Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (ii) there is no breach or default under any Company Material Contract by any of the Company and each of its Subsidiaries, andAcquired Companies party thereto or, to the Knowledge knowledge of the Company, any other party thereto, and no event has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither occurred that with the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, the giving of notice or both would constitute a breach or default on the part thereunder by any of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, Acquired Companies party thereto or, after notice or lapse to the knowledge of time or boththe Company, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectother party thereto.
Appears in 2 contracts
Samples: Merger Agreement (Flir Systems Inc), Merger Agreement (Teledyne Technologies Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a2.13(a) of the Company Disclosure Letter sets forth a listSchedule lists, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreementother than Company Employee Plans (except those Contracts required to be listed pursuant to Section 2.13(a)(xiii)), “Material Contract” means all Contracts each Contract to which the Company or any of its Subsidiaries is a party or by which the Company, they are legally bound that falls into any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatthe following categories:
(i) are any leases, lease guaranties, subleases or would be required to be filed by similar agreements for the Company as a leasing (the “material contract” pursuant to Item 601(b)(10Leases”) of Regulation S-K under the Securities ActLeased Real Property;
(ii) relate any Contract that involved aggregate payments by the Company or any of its Subsidiaries in excess of $175,000 in fiscal year 2014 or, to the formation Knowledge of the Company as of the date hereof, fiscal year 2015;
(iii) any Contract that involved aggregate payments to the Company or any of its Subsidiaries in excess of $350,000 in fiscal year 2014 or, to the Knowledge of the Company as of the date hereof, fiscal year 2015;
(iv) any Contract relating to the acquisition of (i) any ownership interest in any Person or other business enterprise or division thereof (whether by merger, consolidation, sale of stock, sale of assets or otherwise) and containing executory obligations to the Company or any of its Subsidiaries or (ii) assets whose value is in excess of $500,000 since the Look-back Date;
(v) any Contract relating to the consummated sale, lease, conveyance or other disposition of material assets of the Company and its Subsidiaries since the Look-back Date;
(vi) any Contract that relates to the formation, creation, operation, management or control of any material legal partnership, joint ventureventure entity, partnershipjoint marketing strategic alliance, or other similar Person or business combination;
(vii) any Contract relating to any outstanding Indebtedness of the Company or any of its Subsidiaries (including any mortgages, indentures, guarantees, loans or credit agreements, security agreement or other Contracts relating to the borrowing of money or extension of credit) with a principal or notional amount in excess of $100,000;
(viii) any Contract under which the Company or any of its Subsidiaries is granted a license to any third party’s Intellectual Property Rights (“Licensed Intellectual Property Rights”) included in the Company Products, other than (A) licenses and related services Contracts for commercially-available Technology or Intellectual Property Rights involving less than $50,000 of payments from the Company or any of its Subsidiaries per year or $250,000 over the current term of such license or Contract; (B) confidentiality or nondisclosure Contracts (“NDAs”); (C) Open Source Licenses; and (D) Contracts with employees or individual independent contractors for the assignment of, or license to, Intellectual Property Rights, in each case entered into in the ordinary course of business;
(ix) any Contract under which the Company or any of its Subsidiaries has licensed any material Company Intellectual Property to a third Person, other than (A) Contracts that is do not contain any material restrictive covenants and are entered into in the ordinary course of business; (B) Contracts formed pursuant to one of the Company’s standard Contracts (or in a form similar in substance to, or with provisions with substantially similar legal effect as the provisions of, one of such forms); and (C) NDAs entered into in the ordinary course of business;
(x) any Contract (A) that materially limits the ability of the Company or any of its Subsidiaries to (1) engage in or compete in any line of business or with any Person or in any geographic area, (2) acquire any product or other asset or service from any other Person or (3) develop, sell, supply, distribute, offer support or service any product, technology or other asset to or for any other Person; or (B) that contains most favored customer pricing provisions with any third party or grants any exclusive rights, rights of first refusal, or rights of first negotiation to any Person;
(xi) any Contract providing for indemnification of the obligations of any other Person that would be material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been such Contracts entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business business;
(xii) any Contract with any Governmental Authority or Related Party (other than employment-related Contracts or Contracts related to the acquisition of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful equity in the conduct of business of the Company or any of its Subsidiaries);
(vixiii) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
employment Contract that (viia) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate provides current annual or one-time fees base compensation in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under 175,000; (b) includes terms which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or vary materially from terms in the aggregate, prevent, materially delay, Company’s customary offer letter or materially impede includes severance terms that vary from the Company’s standard severance policy; (c) limits the Company’s ability to consummate terminate an employment relationship at will; (d) provides the Transactions employee with a right to terminate his employment relationship for “Good Reason” and receive payments or Parent’s ability to own and/or conduct the business benefits; (e) provides for an offer of any equity grant which grant is not reflected in Section 2.2 of the Company Disclosure Schedule; or any of its Subsidiaries after the Effective Time;
(xf) contain provisions that prohibit the Company provides for additional paid time off, guaranteed bonus, car allowance or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere other non-standard employee benefits in the worldaggregate exceeding $15,000 for any employee, other than Contracts and provided that can be terminated the foregoing sub-clauses (including such restrictive provisionsb), (c) by the Company or any of its Subsidiaries on less than ninety and (90f) days’ notice without payment by the Company or any Subsidiary of the Company shall not include provisions as a matter of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services Law applicable to the Company with annualized fees employment relationship if such provision is not set forth in excess of $300,000an employment Contract;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for any Contract, or group of Contracts with a Person (or group of affiliated Persons), the outsourcing termination or breach of any which would reasonably be expected to have a material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of adverse effect on the Company and its Subsidiaries Subsidiaries, taken as currently conducteda whole, other than managing agency agreements and is not disclosed pursuant to Section 2.13(a)(i) through Section 2.13(a)(xiii); and
(xv) any commitment or managing general underwriting agreementsagreement to enter into any of the foregoing.
(b) As The Company has made available true and complete copies of each Contract disclosed pursuant to Section 2.13(a) (such Contracts, the “Company Material Contracts”). Each Company Material Contract is, to the Knowledge of the date of this AgreementCompany, (i) each Material Contract is valid and binding on the Company or any (and/or each such Subsidiary of its Subsidiaries, to the extent such Person is a Company party thereto, as applicable, ) and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, enforceable against the Company or each such Subsidiary of the Company party thereto, as the case may be, in accordance with its terms, except where the failure as such enforceability may be subject to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (iia) the Laws of general application relating to bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting or relating to creditors’ rights generally and (b) general principles of equity. Neither the Company and each nor any of its SubsidiariesSubsidiaries that is a party thereto, andor, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each is in breach in any material respect of, or default in any material respect under, any Company Material Contract, except where and no event has occurred that with notice or lapse of time or both would constitute such noncompliance would not constitute a Material Adverse Effectbreach or default thereunder by the Company or any of its Subsidiaries, (iii) neither or, to the Knowledge of the Company, any other party thereto. Neither the Company nor any of its Subsidiaries has received any written notice of the existence of any event termination or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries cancellation under any Company Material Contract, except where such received any written notice of breach or default in any material respect under any Company Material Contract which breach has not been cured, or granted to any third Person any rights, adverse or otherwise, that would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part breach in any material respect of any counterparty under such Company Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit Neither the Company nor any Company Subsidiary is a party to or bound by any:
(i) employment agreement or employment contract;
(ii) covenant not to compete or other covenant restricting the Filed SEC Documents, Section 4.16(a) business or operations of the Company Disclosure Letter sets forth a list, as or any Company Subsidiary;
(iii) Contract with any officer or director of the date Company (other than employment agreements covered by clause (i) above);
(iv) Contract under which the Company or a Company Subsidiary has borrowed or agreed to borrow any money from, or issued any note, bond, debenture or other evidence of this Agreementindebtedness to, any person or any other note, bond, debenture or other evidence of all Material Contracts. For purposes indebtedness of this Agreementthe Company or a Company Subsidiary in any such case which, “Material individually, is in excess of $1,000,000;
(v) Contract (including any so-called take-or-pay or keepwell agreements) under which (A) any person including the Company or a Company Subsidiary, has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or a Company Subsidiary in excess of $1,000,000 or (B) the Company or a Company Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person, including the Company or another Company Subsidiary, in excess of $1,000,000 (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(vi) Contract under which the Company or a Company Subsidiary has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person in excess of $1,000,000 (other than the Company or a Company Subsidiary and other than extensions of trade credit in the ordinary course of business);
(vii) Contract granting a Lien upon any Company Property or any other asset of the Company or any Company Subsidiary securing indebtedness or other obligations, in each case in excess of $1,000,000;
(viii) Contract providing for indemnification of any person in excess of $1,000,000 with respect to material liabilities relating to any current or former business of the Company, a Company Subsidiary or any predecessor person;
(ix) a Contract not made in the ordinary course of business in which the amount involved exceeds $1,000,000;
(A) a Contract with a Governmental Entity in which the amount involved exceeds $1,000,000 or (B) a material license or permit by or from any Governmental Entity;
(xi) currency exchange, interest rate exchange, commodity exchange or similar Contract” means all Contracts ;
(xii) a Contract for any joint venture, partnership or similar arrangement;
(xiii) a lease, sublease or similar agreement with respect to Company Property in which the amount involved exceeds $1,000,000;
(xiv) a Contract under which the Company or a Company Subsidiary has agreed to purchase or lease any real property or any interest in real property for a purchase price in excess of $1,000,000 or an annual rental in excess of $1,000,000 or to construct any improvements on real property or a leasehold interest in real property for a contract sum in excess of $1,000,000; or
(xv) a Contract other than as set forth above to which the Company or any of its Subsidiaries a Company Subsidiary is a party or by which the Company, it or any of its Subsidiaries, assets or any of their respective properties or assets businesses is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement subject that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company Subsidiaries or any the use or operation of its Subsidiaries having an outstanding or committed their assets and in which the amount equal to or in excess of involved exceeds $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of All Contracts required to be listed in the date of this AgreementCompany Disclosure Letter (the "Company Contracts") are valid, (i) each Material Contract is valid binding and binding on enforceable against the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, applicable Company Subsidiary in accordance with their respective terms and, to the Knowledge knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or are in full force and effect would not constitute a Material Adverse Effect, (ii) in all material respects. The Company or the applicable Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, Subsidiary has performed all material obligations required to be performed by it to date under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of Contracts, and it is not (with or without the existence of any event or condition that constitutes, or, after notice or lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, will constitute, a default on to the part knowledge of the Company, no other party to any Company Contract is (with or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or without the lapse of time or the giving of notice, or both, will constitute a ) in breach or default on in any material respect thereunder. None of the part Company and the Company Subsidiaries has received any written notice of the intention of any counterparty under such Material party to terminate any Company Contract, except as would not constitute a Material Adverse Effectand no party has, to the knowledge of the Company, any such intention. Complete and correct copies of all Company Contracts, together with all modifications and amendments thereto, have been previously delivered or made available to Parent.
Appears in 2 contracts
Samples: Merger Agreement (Boyd Gaming Corp), Merger Agreement (Boyd Gaming Corp)
Contracts. (a) Except for this Agreement and each Contract for Contracts filed as an exhibit exhibits to the Filed SEC Documents, Section 4.16(a) 4.09 of the Company Disclosure Letter sets forth a listtrue and complete list of, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint ventureeach loan and credit agreement, partnershipnote, or debenture, bond, indenture and other similar agreement that is material Contract pursuant to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than which any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (3,000,000, is outstanding or may be incurred, other than any contracts under such Contract between or among any of the Company and any of its Subsidiaries and any letters of credit;
(iii) each Contract to which the Company or any of its Subsidiaries is a Subsidiary has guaranteed party that by its terms calls for aggregate payments by or to the liabilities Company or obligations any of a wholly owned Subsidiary its Subsidiaries of more than $3,000,000 over the Company)remaining term of such Contract, except for any Real Property Leases or employment agreements entered into in the Ordinary Course of Business or that may be canceled, without any material penalty or other material liability to the Company or any of its Subsidiaries, upon notice of 90 days or less;
(viv) have been each Contract to which the Company or any of its Subsidiaries is a party entered into since January 1, 2017, and involve 2015 or with respect to which the acquisition from another Person Company or disposition to another Person any of capital stock or other equity interests of another Person or of a businessits Subsidiaries has any continuing material obligations, in each case, for relating to the acquisition or disposition by the Company or any of its Subsidiaries of properties or assets for, in each case, aggregate consideration under such Contract in excess of more than $10,000,000 (excluding3,000,000, except for the avoidance of doubt, acquisitions or and dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other properties and assets in the ordinary course Ordinary Course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business Business;
(v) each Contract of the Company or any of its SubsidiariesSubsidiaries that (A) grants a right of exclusivity, right of first offer, right of first refusal or similar right with respect to any business or geographic region (“Exclusive Rights”); (B) authorizes any Person to grant others the right to license any trademark, service xxxx or other Intellectual Property owned by the Company or any of its Subsidiaries in any geographic area (“Master Franchise Rights”); or (C) restricts in any way the ability of the Company or any of its Affiliates (including post-Closing) to compete with any business or in any geographical area or to solicit customers (“Company Noncompete Restrictions”);
(vi) prohibit each Contract that is a settlement, conciliation or similar agreement (A) that is with any Governmental Authority, (B) pursuant to which the payment Company or any of dividends its Subsidiaries is obligated after the date of this Agreement to pay consideration in excess of $3,000,000, or distributions (C) that would otherwise limit in any material respect the operation of the shares Company or capital stock any of its Subsidiaries (or, to the Knowledge of the Company, Parent or any of its other Affiliates from and after the Merger Closing) as currently operated;
(vii) each Contract to which the Company or any of its Subsidiaries is a party primarily involving the inbound or outbound licensing of any Intellectual Property (except for off-the-shelf licenses of commercially available software for less than $500,000 on an annual basis and any Contract that is the subject of clause (B) of Section 4.09(a)(v));
(viii) each Contract that grants to any person any option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any assets (other than immaterial assets) of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to taken as a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;whole; and
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business each Contract of the Company or any of its Subsidiaries that is necessary for the conduct of the business relates to a partnership, joint venture or similar arrangement. Each Contract set forth on Section 4.09 of the Company and its Subsidiaries Disclosure Letter or required to be set forth thereon (but subject to the last sentence of Section 4.09(b)) is referred to herein as currently conducted, other than managing agency agreements or managing general underwriting agreementsa “Specified Contract.”
(b) As of the date of this Agreement, (i) the Company has made available to Parent true and complete copies of each Material Contract Specified Contract. Each of the Specified Contracts is valid and binding on the Company or any the Subsidiary of its Subsidiaries, to the extent such Person is a Company party thereto, as applicable, thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be validin each case as would not, binding, individually or in full force and effect would not constitute the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) . There is no breach or default under any Specified Contract by the Company and each or any of its Subsidiaries, andSubsidiaries or, to the Knowledge of the Company, by any other party thereto, and no event has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither occurred that with the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, the giving of notice or both would constitute a breach or default on the part of thereunder by the Company or any of its Subsidiaries under or, to the Knowledge of the Company, by any Material Contractother party thereto, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except in each case as would not constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Restaurant Brands International Inc.), Merger Agreement (Popeyes Louisiana Kitchen, Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as As of the date of this Agreement, none of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which the Company, to any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be Contract required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;Act (a “Filed Company Contract”) that has not been so filed.
(iib) relate Section 3.18(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, an accurate and complete list, and the Company has made available to Parent accurate and complete copies, of: (i) each Contract to which the formation Company or management any of the Company Subsidiaries is a party that restricts in any joint venture, partnership, material respect the ability of the Company or other similar agreement any Company Subsidiaries to compete in any line of business or geographic area and that is material to the business of Company and the Company and its Subsidiaries, taken as a whole;
; (iiiii) provide for each Contract pursuant to which any material amount of Indebtedness of the Company or any of its the Company Subsidiaries having an is outstanding or committed amount equal to or in excess of $10,000,000may be incurred by its terms, other than any Indebtedness such agreement solely between or among the Company and the wholly owned Company Subsidiaries or between or among wholly owned Company Subsidiaries; (iii) each material partnership, joint venture or similar Contract to which the Company or any of the Company and Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of its Subsidiaries;
any equity interest in any entity or business enterprise other than the Company Subsidiaries or securities held for investment by the Company or the Company Subsidiaries in the ordinary course of business; (iv) are each material Contract between the Company or any keepwell of the Company Subsidiaries, on the one hand, and, on the other hand, any (A) present executive officer or similar agreement director of either the Company or any of the Company Subsidiaries, (B) record or beneficial owner of more than 5% of the Common Shares outstanding as of the date hereof or (C) to the Knowledge of the Company, any affiliate of any such executive officer, director or owner (other than the Company or any of the Company Subsidiaries), in each case, other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents; (v) each Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries, with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, of any material business or any material amount of assets other than any such Contract entered into in the ordinary course of business; (vi) each Contract to which the Company or any Company Subsidiary is a party that would reasonably be expected to involve aggregate payments during calendar year 2019 or any subsequent 12-month period of at least $200 million and which is not terminable by either party on less than 60 days’ written notice without material penalty, except for any such Contract which is entered into in the ordinary course of business; and (vii) other than Contracts for ordinary repair and maintenance, each Contract providing for the development or construction of, or additions or expansions to, any real property, under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company Subsidiaries has, or any of its Subsidiariesexpects to incur, in each case involving liabilities or obligations an obligation in excess of $10,000,000 (other than any contracts under which 200 million in the aggregate; provided that the following Contracts shall not be required to be listed on Section 3.18(b) of the Company Disclosure Letter, shall not be required to made available to Parent pursuant to this Section 3.18(b), and shall not be deemed a “Material Contract” for any purposes hereunder (whether or not a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of Filed Company Contract): (1) any Company Benefit Plan, (2) any Contract between the Company);
(v) have been entered into since January 1, 2017on the one hand, and involve one or more Company Subsidiaries, on the acquisition from another Person other hand, or disposition to another Person between one or more Company Subsidiaries and (3) any Real Estate Lease, which are the subject of capital stock or other equity interests of another Person or of a businessSection 3.19 (any such Contract in clauses (1) through (4), an “Excluded Contract”). Each Contract described in this Section 3.18(b) and each Filed Company Contract, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excludingother than any Excluded Contract, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant is referred to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);herein as a “Material Contract.”
(vic) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing Except for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected tomatters which, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability have not had and would not reasonably be expected to consummate the Transactions or Parent’s ability to own and/or conduct the business of the have a Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this AgreementMaterial Adverse Effect, (i) each Material Contract is valid a valid, binding and binding on legally enforceable obligation of the Company or any one of its the Company Subsidiaries, to as the extent such Person is a party thereto, as applicablecase may be, and, to the Knowledge of the Company, each of the other party parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity, (ii) each such Material Contract is in full force and effect, except where and (iii) none of the failure to be valid, bindingCompany or any of the Company Subsidiaries is (with or without notice or lapse of time, or both) in full force and effect would not constitute a breach or default under any such Material Adverse Effect, (ii) the Company and each of its Subsidiaries, Contract and, to the Knowledge of the Company, any no other party thereto, has performed all obligations required to be performed by it under each any such Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, Contract is (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event with or condition that constitutes, or, after without notice or lapse of time time, or both) in breach or default thereunder, will constituteexcept, a default on in the part case of clauses (i) or (ii), with respect to any Material Contract which expires by its terms (as in effect as of the date hereof) or which is terminated in accordance with the terms thereof by the Company or any in the ordinary course of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectbusiness consistent with past practice.
Appears in 2 contracts
Samples: Merger Agreement (Marubeni Corp /Fi), Merger Agreement (Aircastle LTD)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(aSchedule 3.11(a) of the Company Parent Disclosure Letter Schedules sets forth a listforth, as of the date hereof, a list of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all the following Contracts to which the any Acquired Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is are bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:the “Material Contracts”):
(i) are or would be required any Contract under which the remaining amounts to be filed paid or received by the any Acquired Company as a “material contract” pursuant would reasonably be expected to Item 601(b)(10) of Regulation Sexceed $1,500,000 in any twelve-K under the Securities Actmonth period, other than any Contract with another Acquired Company to document intercompany loans or arrangements;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiiiiii) involve all Contracts which relate to Indebtedness under which any Acquired Company has outstanding obligations in excess of $200,000 owed by any Acquired Company or the provision guarantee thereof;
(iv) all Contracts under which any Acquired Company has guaranteed any Liability or the obligations of material third-any other Person (other another Acquired Company) in excess of $150,000;
(v) all Contracts containing covenants made by any Acquired Company that materially limit or purport to limit the ability of any Acquired Company to compete in any line of business or with any Person or in any geographic area or sales channel;
(vi) any Contract with a director, officer or employee of any Acquired Company under which such director, officer or employee is to be paid more than $350,000 per annum;
(vii) any Contract with an unaffiliated third party administration or other policy or claims administration services with respect to any Insurance Contractspartnership, limited liability company, joint venture or similar arrangements, or investment management services any shareholders, voting or similar Contract to which any Acquired Company is a party, by which any Acquired Company is bound or to which any Acquired Company is subject;
(viii) any Contract for the lease, sublease, sale, purchase or other occupancy right with respect to real property that is still in effect and, individually, could reasonably be expected to result in payments by any Acquired Company in excess of $250,000 in any twelve-month period;
(ix) any Contract that provides for the payment, increase or vesting of any of its Subsidiariesbenefits or compensation in connection with the transactions contemplated by this Agreement; or
(xivx) provide for the outsourcing any Contract that relates to any settlement of any material function disputes or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conductedmaterial litigation, other than managing agency agreements (x) releases immaterial in nature or managing general underwriting agreements.
(b) As of the date of this Agreementamount, (iy) each Material Contract is valid and binding on settlement agreements for cash only (which has been paid) or (z) settlement agreements under which the Company Acquired Companies do not have any continuing material financial obligations or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectliabilities.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Neutral Tandem Inc), Equity Purchase Agreement (Global Telecom & Technology, Inc.)
Contracts. (a) Except for this Agreement and each Contract filed As of the date hereof, except as an exhibit to the Filed SEC Documents, set forth in Section 4.16(a2.13(a) of the Disclosure Schedule, no Acquired Company Disclosure Letter sets forth a list, as and (with respect to the operation or conduct of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries Business) neither PKI nor either Asset Seller is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatto any:
(i) are agreement (or would group of related agreements with the same person or entity or one or more of PKI, either of the Asset Sellers or any of the Acquired Companies) for the lease of personal property from or to third parties providing for lease payments the remaining unpaid balance of which is in excess of $500,000, other than (A) purchase orders relating to the supply of goods and services to the Business in the Ordinary Course of Business, and (B) agreements that can be required to be filed terminated by the PKI, such Acquired Company or such Asset Seller, as a “material contract” pursuant to Item 601(b)(10applicable, on ninety (90) or fewer days’ notice without payment by PKI, such Acquired Company or such Asset Seller of Regulation S-K under the Securities Actany penalty;
(ii) relate agreement (or group of related agreements with the same person or entity or one or more of PKI, either of the Asset Sellers or any of the Acquired Companies): (A) for the purchase by or from any Acquired Company, PKI or either of the Asset Sellers of products or services under which the undelivered balance of such products and services is (or is reasonably expected to be), or has since January 1, 2016 been, in excess of $500,000, other than (I) any such contracts and agreements that can be terminated by PKI, such Acquired Company or such Asset Seller, as applicable, on ninety (90) or fewer days’ notice without payment by PKI, such Acquired Company or such Asset Seller of any penalty, or (II) any purchase orders relating to the formation supply of goods and services to the Business in the Ordinary Course of Business; or management of (B) with any joint venture, partnership, or other similar agreement that sole source suppliers whose supply is material to the business Business;
(iii) agreement establishing a partnership, joint venture, strategic alliance, revenue-sharing or similar agreement;
(iv) agreement (or group of related agreements with the same person or entity or one or more of PKI, either of the Asset Sellers or any of the Acquired Companies) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness the outstanding balance of which is more than $500,000 or under which it has imposed a Security Interest on any of the assets, tangible or intangible, that are material to the Business, taken as a whole, except for any Security Interests relating to any capitalized lease financing;
(v) agreement (A) that prohibits or purports to limit or restrict the Business or the right or ability of any Acquired Company and its Subsidiariesfrom competing or freely engaging in any line of business or with any person or entity anywhere in the world or in any field, market, or during any period of time; (B) that prohibits or purports to limit or restrict any Acquired Company’s ability to own, operate, source, manufacture, sell, transfer, pledge or otherwise dispose of any material assets or business; (C) for the grant to any person or entity of any preferential rights to purchase any of the assets of the Business; or (D) containing any “most favored nation” or “most favored customer” or similar provision in favor of the other party, in each case, that are material to the Business, taken as a whole;
(iiivi) provide for Indebtedness agreement involving the executive officers or directors of the any Acquired Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant with respect to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(viBusiness) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Companyeither Asset Seller;
(vii) restrict employment or grant rights to use or practice rights under material Intellectual Property, including agreements providing similar agreement for the creation or development employment of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to individual on a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or onefull-time fees or part-time basis providing annual base compensation at a rate in excess of $2,000,000250,000 during any 12-month period, other than commercially available “off-the-shelf” software licenses under which software is licensed except any such agreement entered into to the Company or any of its Subsidiariescomply with applicable foreign law;
(viii) involve severance, change in control, retention, “stay pay” or could reasonably be expected to involve aggregate payments termination agreement with any director, officer, employee or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary individual independent contractor of the Company Business other than any such agreement that shall remain an obligation of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with PKI after the TransactionsClosing;
(ix) would reasonably be expected toagreement for the sale of any assets or properties of the Business, individually or other than agreements for the sale of goods and services in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business Ordinary Course of the Company or any of its Subsidiaries after the Effective TimeBusiness;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in agreement providing for any material line payments that are conditioned, in whole or in part, on a change of business control or grant a right sale of exclusivity to any Person that prevents Acquired Company, the Company Business or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, Acquired Assets other than Contracts any such agreement that can be terminated (including such restrictive provisions) by shall remain an obligation of PKI after the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penaltyClosing;
(xi) involve agreement for the retention acquisition by any Acquired Company or either Asset Seller of any independent contractoroperating business or the equity interests of any other person, consultant, other than acquisitions by either Asset Seller that have not or agency for will not become integrated into the provision of services to the Company with annualized fees in excess of $300,000Business;
(xii) constitute collective bargaining agreements;agreement (or group of related written agreements with the same person or entity or one or more of PKI or any of its subsidiaries) providing for (A) any grant by PKI or any of its subsidiaries to another person of any right, permission, license, consent or covenant of non-assertion relating to or under any Business IP (other than non-exclusive licenses granted in the Ordinary Course of Business to end-user customers and distributors of any Business Product), or (B) any grant by another person (other than PKI or any of its subsidiaries) to PKI or any of its subsidiaries of any right, permission, consent or covenant of non-assertion relating to or under any Intellectual Property used in or related to the Business (other than standard form contracts granting rights to use readily available shrink wrap or click wrap Software having a replacement cost and annual license fee of less than $20,000 for all such related contracts); and
(xiii) involve agreement granting any exclusive right, right of first refusal, or right of negotiation to license, market, distribute, sell, or deliver (I) any product or service (including software) that is currently being, or has at any time within the three (3) years prior to the date of this Agreement been, designed, modified, developed, produced, distributed, marketed, provided, exported, licensed, sold, or offered for sale by any Acquired Company or, in connection with the Business, by PKI or any other IP Holder (collectively, “Business Products”) or (II) any Business IP that is material to the Business, taken as a whole; provided, however, that (A) no agreement referred to in clauses (i) through (xiii) above need be disclosed unless PKI, the applicable Acquired Company or the applicable Asset Seller currently has, or may in the future have, any material rights or obligations thereunder and (B) Leases are not required to be disclosed in response to any provision of material third-party administration or other policy or claims administration services with respect to any Insurance this Section 2.13, but shall constitute Designated Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As PKI has made available to Buyer a correct and complete copy of each agreement (as amended to the date of this Agreement) listed in Section 2.13(a) of the Disclosure Schedule and each other Designated Contract in effect on the date of this Agreement (the agreements listed (or required to be listed) in Section 2.13 of the Disclosure Schedule, (i) each Material all Leases, all Transferred Contracts and the agreement with Brainlab AG dated October 1, 2013, the “Designated Contracts”). Each Designated Contract is valid a valid, binding and binding on enforceable obligation of PKI, the applicable Acquired Company or any of its Subsidiaries, to the extent such Person is a party theretoapplicable Asset Seller, as applicablethe case may be, and, to the Knowledge Sellers’ knowledge, of the Company, each other party theretothereto (except as the foregoing may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief, and other equitable remedies and those providing for equitable defenses). None of the Sellers or the Acquired Companies or, to Sellers’ knowledge, any other party, is in full force material breach or material violation of, or material default under, any such Designated Contract; and effectto Sellers’ knowledge, except where no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to result in a material breach, material violation or material default by the failure Sellers or the Acquired Companies or, to Sellers’ knowledge, any other party, under any Designated Contract. Any agreements entered into between the date of this Agreement and the Closing that would have been required to be listed in Section 2.13 of the Disclosure Schedule had they been in effect on the date hereof shall be referred to herein as the “Subsequent Designated Contracts.” Each Subsequent Designated Contract will, on the Closing Date, be a valid, bindingbinding and enforceable obligation of PKI, the applicable Acquired Company or in full force and effect would not constitute a Material Adverse Effectthe applicable Asset Seller, (ii) as the Company and each of its Subsidiariescase may be, and, to Sellers’ knowledge, of each other party thereto (except as the Knowledge foregoing may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief, and other equitable remedies and those providing for equitable defenses). None of the CompanySellers or the Acquired Companies or, to Sellers’ knowledge, any other party theretoparty, has performed all obligations required will, on the Closing Date, be in material breach or material violation of, or material default under, any such Subsequent Designated Contract; and to be performed by it under each Material ContractSellers’ knowledge, except where such noncompliance would not constitute a Material Adverse Effectno event will have occurred, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event and no circumstance or condition will exist, in each case on the Closing Date, that constitutes, or, after (with or without notice or lapse of time time) would reasonably be expected to result in a material breach, material violation or bothmaterial default by the Sellers or the Acquired Companies or, will constituteto Sellers’ knowledge, a default on the part of the Company or any of its Subsidiaries other party, under any Material Subsequent Designated Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Master Purchase and Sale Agreement (Varex Imaging Corp), Master Purchase and Sale Agreement (Perkinelmer Inc)
Contracts. (ai) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, set forth in Section 4.16(a5.1(s) of the Company Disclosure Letter sets forth a listSchedule, as of the date of this Agreement, none of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party to or bound by which the Companyany contract, any of its Subsidiariesagreement, or any of their respective properties or assets is bound (other than Company Plans and insurancecommitment, reinsurance, or retrocession treaties or agreements, slips, binders, cover noteslease, or other similar arrangementsinstrument or obligation, whether oral or written (each a “Contract”): (A) that:
(i) are or would be required to be filed by the Company as a “material contract” with the SEC pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
; (iiB) relate with respect to partnerships, joint ventures or similar arrangements; (C) containing covenants of the formation Company or management any of its Subsidiaries purporting to limit in any joint venturematerial respect any line of business, partnershipany channel of distribution, or geographical area in which the Company or its Subsidiaries may operate; (D) pursuant to which the Company or any of its Subsidiaries has any Indebtedness in an amount in excess of $500,000 outstanding (other similar agreement than intercompany Indebtedness); (E) licensing or otherwise specifically concerning Intellectual Property (except for Contracts with respect to non-exclusive, generally commercially available software) that is material to the business of the Company and its Subsidiaries, taken as a whole;
; (iiiF) provide for Indebtedness of that is a collective bargaining agreement, or any other Contract with any labor union, labor organization or works council; (G) pursuant to which the Company or any of its Subsidiaries having an outstanding or committed amount equal leases Owned Real Property to or in excess of $10,000,000, any third party other than any Indebtedness between or among any of short term leases that are terminable by the Company or its Subsidiaries without fee or penalty upon thirty days’ or less prior notice; (H) that is a Property Franchise; (I) for any construction work (including any additions or expansions) to be performed at any Owned Real Property and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations an obligation in excess of another Person or under $250,000 in the aggregate; (J) relating to interest rate caps, interest rate collars, interest rate swaps, currency hedging transactions and other similar arrangements to which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities Subsidiaries is a party or obligations in excess of $10,000,000 an obligor with respect thereto; (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(vK) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) require the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a third Person party or that contain “take or pay” provisions; or (yL) a third Person that by its terms calls for aggregate payments by or to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 500,000. Each such Contract described in any twelve month period, other clauses (xA) than those terminable on less than ninety - (90L) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability above is referred to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant herein as a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements“Material Contract.
(b) ” As of the date hereof, the Company has made available to Parent an accurate and complete copy of this Agreement, (i) each Material Contract Contract.
(ii) Each of the Material Contracts is valid and binding on the Company or any and each of its Subsidiaries, to the extent such Person is a Subsidiaries party thereto, as applicable, thereto and, to the Knowledge of the Company, each other party thereto, thereto and is in full force and effect, except where the failure for such failures to be valid, binding, valid and binding or to be in full force and effect that, would not constitute not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (ii) . There is no default under any Material Contract either by the Company and each or any of its SubsidiariesSubsidiaries party thereto or, andto the Knowledge of the Company, by any other party thereto, and no event has occurred that with notice or lapse of time or both would constitute a default thereunder by the Company or any of its Subsidiaries party thereto or, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under in each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, case except as would not constitute not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Penn National Gaming Inc), Merger Agreement (Tropicana Las Vegas Hotel & Casino, Inc.)
Contracts. (a) Except for Set forth in EXHIBIT 3.12(A) is a list of all of the following (collectively, "MATERIAL CONTRACTS", which term when used elsewhere in this Agreement applies to clause (i) below with respect to leases and each Contract filed as an exhibit other contracts entered into prior to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of date hereof without regard to the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:limitation set forth therein):
(i) are leases or would be required other contracts entered into prior to be filed by July 30, 1999, involving obligations on the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management part of any joint venture, partnership, or Group Company to pay to any party other similar agreement that is material to the business of the than a Group Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of US$500,000 (or $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries1,000,000, in each the case involving liabilities of leases or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1after July 8, 2017, and involve 1999) in the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets it being understood that individual purchase orders placed in the ordinary course of business shall not be considered "contracts" for this purpose, although master agreements covering multiple purchase orders shall be considered "contracts");
(ii) contracts under which the Group Companies are forecast to receive revenues in any years (other than prepaid revenues) that represent more than one percent (1%) of the forecast consolidated revenues of the Group Companies for 1999, in each case as set forth in the Company's most recent business plan;
(iii) credit or finance lease agreements, guarantees or security agreements to which any of supplies, products, properties, the Group Companies is a party;
(iv) contracts or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business agreements between any of the Company or Group Companies and any of its Subsidiariesofficers (which term shall, in this Agreement, refer in particular to PRESIDENT-DIRECTEUR GENERAL, PRESIDENT DU DIRECTOIRE, GERANT, DIRECTEUR GENERAL, DIRECTEUR GENERAL ADJOINT, SECRETAIRE GENERAL, DIRECTEUR FINANCIER, DIRECTEUR COMMERCIAL, DIRECTEUR TECHNIQUE and other individuals having the same level of responsibility) or directors (which term shall, in this Agreement, refer in particular to any ADMINISTRATEUR, or MEMBRE DU CONSEIL DE SURVEILLANCE or MEMBRE DU DIRECTOIRE), or members of their respective families, or any shareholder of any of the Group Companies (other than the constitutive documents of the entities listed in EXHIBIT 3.4(B)) or its or their officers or directors, or members of their respective families;
(v) joint venture or joint bidding agreements or other contracts involving the sharing of profits, losses, costs or liabilities (other than the constitutive documents of the entities listed in EXHIBIT 3.4);
(vi) prohibit the payment of dividends contracts with any agents or distributions in representatives entitling any third party to remuneration with respect to any of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance present and/or future business activities of any guarantee by the Company or any Subsidiary of the Group Company;
(vii) restrict any collective bargaining or grant rights similar agreement to use or practice rights under material Intellectual Property, including agreements providing for the creation with any labor union or development other employee representative of material Intellectual Property or access and use a group of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or employees of any of its Subsidiaries the Group Companies entered into prior to July 8, 1999, or implementing French legal requirements imposing a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one35-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;hour work week; and
(viii) involve any power of attorney currently effective (other than powers of attorney held by employees of the Group Companies) granted prior to July 8, 1999.
(b) Except as set forth in EXHIBIT 3.12(B), none of the Group Companies is in default under any of the Material Contracts as a result of which another party thereto has the right to terminate any such Material Contract before the stated expiration of its term or which could reasonably be expected to involve aggregate payments result in material damages; no Group Company has notified the other party to any Material Contract in writing of a material breach of such other party's obligations thereunder; and the Seller has not received written notice of existing circumstances likely to give rise to a default by any Group Company or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or other parties under any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any such Material Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability such as to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency constitute grounds for the provision invalidity, avoidance or repudiation of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each such Material Contract. Each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effecteffect and true and correct copies thereof have been made available to the Purchaser. Except as set forth in EXHIBIT 3.12(B), except where no Group Company is a party to or subject to any agreement, obligation or liability which is a guarantee or an indemnity by any such Group Company in respect of the failure obligations of a third party which is not a Group Company under which any liability or contingent liability is outstanding.
(c) No Group Company is a party to any agreement which can be validterminated or which would be breached by the consummation of the transactions contemplated herein.
(d) Except as expressly set forth above, bindingthe Seller makes no representation and gives no warranty with respect to the Material Contracts. Without limiting the generality of the foregoing and without limiting in any way the provisions of Section 3.7, the Seller makes no representation and gives no warranty as to the profitability (present or future) of any of the contracts of the Group Companies, including without limitation those described in full force and effect would not constitute subsection (a)(ii).
(e) Set forth in EXHIBIT 3.12(E) is a Material Adverse Effectlist of all contracts to which any of the Group Companies is a party which contain provisions providing for non-compete and/or exclusivity arrangements.
(f) Except as contemplated with the Purchaser under the terms of this Agreement, neither the Seller nor any of the Seller's affiliates are bound under or a party to any contract or other agreement (i) regarding the consolidation or merger of any of the Group Companies with or into any such person or persons (ii) regarding the Company and each sale, conveyance or disposition of its Subsidiaries, and, to the Knowledge all or substantially all or a large portion of the Companyassets of any of the Group Companies or a transaction or series of related transactions in which any voting securities of any the Group Companies would be issued, any other party theretotransferred or disposed of, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, or (iii) neither the Company nor regarding any other form of acquisition, liquidation, dissolution or winding up of any of its Subsidiaries has received notice of the existence of any event or condition that constitutesGroup Companies.
(g) The Share Purchase Agreement dated August 2, or, after notice or lapse of time or both, will constitute, a default on 1999 between the part of Seller and Global Industries Ltd. is the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on only agreement with continuing obligations relating to the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectsubject matter thereof.
Appears in 2 contracts
Samples: Share Purchase Agreement (Stolt Nielsen S A), Share Purchase Agreement (Stolt Offshore S A)
Contracts. (a) Except for this Agreement Neither the Company nor any of its Subsidiaries is a party to any of the following types of Contracts (each such Contract and each Contract disclosed on the Company Disclosure Schedule being referred to in this Agreement as a “Material Contract”):
(i) Contract required to be filed as an exhibit by the Company with the SEC pursuant to Item 601 of Regulation S-K under the 1933 Act;
(ii) Contract (A) that involves performance of services or delivery of goods, materials, supplies or equipment or developmental commitments to the Filed SEC DocumentsCompany or any of its Subsidiaries, Section 4.16(aor the payment therefor by the Company or any of its Subsidiaries, in either case providing for an annual payment by the Company of $250,000 or more or (B) between the Company and any distributor or reseller of the products of the Company Disclosure Letter sets forth a listor any of its Subsidiaries that holds inventory of the products of the Company or any of its Subsidiaries (“Product Inventory”) whose aggregate value, as of March 31, 2008, exceeds $200,000, pursuant to which the date Company or any of this Agreement, its Subsidiaries may be required to repurchase Product Inventory upon the termination of all Material Contracts. For purposes such Contract;
(iii) Contract that contains any exclusivity provisions restricting the Company or any of this Agreement, “Material Contract” means all Contracts its Affiliates or limits the freedom of the Company or any of its Affiliates to compete in any line of business or with any Person or in any area or which would so limit the freedom of the Company or any of its Affiliates after the Closing Date;
(iv) lease or sublease (whether of real or personal property) to which the Company or any of its Subsidiaries is a party as either lessor or by which the Companylessee, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
providing for either (i) are annual payments of $250,000 or would be required to be filed by more or (ii) aggregate payments after the Company as a “material contract” pursuant to Item 601(b)(10) date hereof of Regulation S-K under the Securities Act$500,000 or more;
(iiv) relate material Contract relating in whole or in part to the formation use, exploitation or management practice of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of Intellectual Property by the Company or any of its Subsidiaries having an outstanding (including any license or committed amount equal to other Contract under which the Company or in excess any of $10,000,000, its Subsidiaries is licensee or licensor of any such Intellectual Property) other than any Indebtedness between or among any the Contracts set forth in Section 5.20(f) of the Company Disclosure Schedule;
(vi) Contract relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $250,000 and which may be prepaid on not more than 30 days’ notice without the payment of any penalty;
(vii) Contract under which the Company or any of its SubsidiariesSubsidiaries has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than the Company or any of its Subsidiaries and other than (i) extensions of credit in the ordinary course of business consistent with past practices and (ii) investments in marketable securities in the ordinary course of business consistent with past practices);
(ivviii) are any keepwell or similar agreement Contract under which the Company or any of its Subsidiaries has directly guaranteed any obligations which have not been satisfied or performed (other than confidentiality obligations) relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(ix) Contract providing for indemnification of any Person with respect to liabilities relating to any current or obligations former business of another the Company, any of its Subsidiaries or any predecessor Person or under which another Person has directly guaranteed any liabilities or other than indemnification obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made Subsidiaries pursuant to the Investment Guidelines, or provisions of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) entered into by the Company or any of its Subsidiaries on less than ninety in the ordinary course of business consistent with past practices;
(90x) days’ notice without payment by the Company partnership, joint venture or any Subsidiary of the Company of any material penalty;other similar Contract or arrangement; or
(xi) involve the retention of employee collective bargaining agreement or other Contract with any independent contractor, consultant, labor union or agency employment Contract (other than for the provision of services to the Company with annualized fees employment at-will or similar arrangements) that has an aggregate future liability in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of 100,000 and is not terminable by the Company or any of its Subsidiaries that is necessary by notice of not more than 60 days for the conduct a cost of the business of the Company and its Subsidiaries as currently conducted, other less than managing agency agreements or managing general underwriting agreements$100,000.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on Neither the Company or nor any of its Subsidiaries, nor, to the extent knowledge of the Company, any other party thereto, is in violation of or in default under (nor does there exist any condition, and no event or circumstances have occurred, which upon the passage of time or the giving of notice would cause such Person a violation of or default under) in any material respect in any Material Contract. Each Material Contract is a party theretovalid and binding agreement of the Company or its Subsidiary, as applicable, and, to the Knowledge knowledge of the Company, each any other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectsuch enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Laws affecting creditors’ rights generally and by general principles of equity.
Appears in 2 contracts
Samples: Merger Agreement (Packeteer Inc), Merger Agreement (Blue Coat Systems Inc)
Contracts. (a) Except (x) for this Agreement and each Contract Agreement, (y) for the Contracts filed as an exhibit no less than one (1) Business Day prior to the Filed date hereof as exhibits to the SEC DocumentsReports and (z) pursuant to any Company Plan, Section 4.16(a3.8(a) of the Company Disclosure Letter sets forth a true, correct and complete list, as of the date of this Agreementhereof, of all Material Contracts. For purposes any of this Agreementthe following notes, bonds, mortgages, indentures, contracts, agreements, leases or other similar instruments (each, a “Material Contract” means all Contracts ”) to which the Company or any of its Subsidiaries subsidiaries is a party to or by which the Company, any of its Subsidiaries, or any of their respective properties or assets them is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatbound:
(i) Contracts that are (A) Management Agreements or (B) Franchise Agreements;
(ii) (A) Any lease, sublease or occupancy agreement of real property (other than Ground Leases) under which the Company or any of its subsidiaries is the tenant or subtenant or serves in a similar capacity, (x) providing for annual rentals of $500,000 or more or (y) demising more than 5,000 square feet of space (each, a “Material Company Lease”); (B) any lease, sublease, license or occupancy agreement of real property (other than Ground Leases) under which the Company or any of its subsidiaries is the landlord or sub-landlord or serves in a similar capacity, (x) providing for annual rentals of $500,000 or more or (y) demising more than 5,000 square feet of space (each, a “Material Space Lease”) or (C) any Ground Lease;
(iii) Contracts, other than any Management Agreements or Franchise Agreements, with any undelivered balance providing for an expenditure (including any capital expenditure) by the Company and its subsidiaries in excess of $1,000,000, excluding any payment obligation budgeted for in the Company’s 2021 budget or in the budgets of any joint venture;
(iv) Contracts that relate to (A) the sale of any of the Company’s or any of its subsidiaries’ assets with a fair market value or purchase price in excess of $1,000,000 individually, other than in the ordinary course of business, or (B) the pending purchase or sale, option to purchase or sell, right of first refusal, right of first offer or other right to purchase, sell, dispose of, or ground lease, by merger, purchase or sale of assets or stock or otherwise, any real property (including any Owned Real Property or any portion thereof);
(v) Contracts that relate to the acquisition of any business, stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) of more than $2,500,000 individually or under which the Company or its subsidiaries has continuing indemnification (other than in the ordinary course of business in an amount that would not reasonably be expected to be material to the Company and its subsidiaries, taken as a whole), earnout or similar obligations involving more than $2,500,000 in the aggregate over the term of the Contract from and after the date of this Agreement;
(vi) Contracts relating to (A) indebtedness or guarantees, in each case having an outstanding principal amount in excess of $2,500,000 or (B) other than in the ordinary course of business consistent with past practice, any loan, advance or other extension of credit made by the Company or any of its subsidiaries;
(vii) Contracts relating to any material swap, forward, futures, warrant, option or other derivative transaction, or interest rate or foreign currency protection, other than any such Contract between or among any of the Company and any of its subsidiaries;
(viii) Contracts for joint ventures, strategic alliances, collaboration, co-promotion, co-marketing or partnerships, in each case, that are material to the Company and its subsidiaries taken as a whole;
(ix) Contracts, other than any Management Agreements or Franchise Agreements, that grant to any Person other than the Company or its subsidiaries any (A) “most favored nation” rights, (B) rights of first refusal, rights of first negotiation or similar rights or (C) exclusive rights to purchase, develop or market any of the Company’s or its subsidiaries’ properties, products or services;
(A) Contracts with any Governmental Entity (other than Permits) or (B) any stockholders, investors rights, registration rights or similar agreement or arrangement or other Affiliate Contracts;
(xi) material Contracts, other than any Management Agreements or Franchise Agreements, relating to material Intellectual Property, other than commercially available non-exclusive licenses with annual fees of less than $150,000;
(xii) Contracts, other than any Management Agreements or Franchise Agreements, providing for any minimum or guaranteed payments or purchases by the Company or any of its subsidiaries to any Person in excess of $1,000,000 annually;
(xiii) Contracts, other than any Management Agreements or Franchise Agreements, containing covenants that purport to (A) materially restrict or limit the ability of the Company, its subsidiaries or any of the Company’s future subsidiaries or Affiliates to compete in any geographical area, market or line of business, (B) materially restrict or limit the Company, its subsidiaries or any of the Company’s future subsidiaries or Affiliates from selling products or delivering services to any Person, or (C) otherwise materially restrict the Company, its subsidiaries or any of the Company’s future subsidiaries or Affiliates from engaging in any aspect of its business, except in each case, for any such Contract that may be cancelled without penalty by the Company or any of its subsidiaries upon notice of 120 days or less;
(xiv) Settlement agreement or similar agreement with a Governmental Entity involving future performance by the Company or any of its subsidiaries in any such case, that is material to the Company and its subsidiaries, taken as a whole;
(xv) Contracts with any labor organization, union, works council, workers’ association or other employee representative body;
(xvi) Contracts, other than any Management Agreements or Franchise Agreements, prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its subsidiaries or prohibiting the pledging of the capital stock of the Company or any subsidiary of the Company; and
(xvii) Contracts, other than any Management Agreements or Franchise Agreements, involving annual revenues to the business of the Company and its subsidiaries in excess of $5,000,000 for the prior fiscal year or reasonably expected for the current fiscal year. Each Contract required to be filed by set forth in Section 3.8(a) of the Company Disclosure Letter or filed as an exhibit to the SEC Reports as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
Act (ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) excluding any Company Lease, or (zPlan) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability is referred to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant herein as a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements“Material Contract”).
(b) As Each of the date of this Agreement, (i) each Material Contract Contracts is valid and binding on the Company or any and each of its Subsidiaries, to the extent such Person is a subsidiaries party thereto, as applicable, thereto and, to the Knowledge knowledge of the Company, each other party thereto, and is in full force and effect, subject to the Bankruptcy and Equity Exception, except where (i) to the failure extent that any Material Contract expires or terminates after the date hereof in accordance with its terms, and (ii) for such failures to be valid, binding, valid and binding or to be in full force and effect that would not constitute reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof (iix) neither the Company and each nor any of its Subsidiariessubsidiaries has received written notice from any other party to a Material Contract that such other party intends to terminate, andnot renew, modify or renegotiate in any material respects the terms of any such Material Contract (except in accordance with the terms thereof) and (y) there is no breach or default under any Material Contract by the Company or any of its subsidiaries or, to the Knowledge knowledge of the Company, any other party thereto, and no event has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither occurred that with or without the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, the giving of notice or both would constitute a default on the part of thereunder by the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectsubsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (CorePoint Lodging Inc.), Merger Agreement (CorePoint Lodging Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a3.16(a) of the Company Disclosure Letter sets forth a list, list of all Material Contracts as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts any Contract to which the Company or any of its Subsidiaries is a party or by which the Company, Company or any of its Subsidiaries, Subsidiaries or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate with respect to the formation or management of any a joint venture, partnership, partnership or other similar agreement arrangement that is material to the business of the Company and its Subsidiaries, taken as a whole, or relates to the formation, creation, governance, economics or control of any such joint venture, partnership or other similar arrangement;
(iii) provide provides for Indebtedness indebtedness for borrowed money of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,00025 million, other than any (A) Indebtedness solely between or among any of the Company and any of its Subsidiarieswholly owned Subsidiaries or (B) letters of credit;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve relates to the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a any business, in each caseassets, or properties (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $10,000,000 50 million (excludingA) that was entered into after January 1, 2014, or (B) pursuant to which any material earn-out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries of more than $15 million after the date hereof (in each case, excluding for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, productsinventory, properties, merchandise or other assets products in the ordinary course of business or of supplies, inventory, merchandise, products, properties, properties or other assets that are obsolete, worn out, surplus, surplus or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(viv) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing is a Contract for the creation purchase of materials, supplies, goods, services, equipment or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, other assets which provided for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penaltymore than $20 million during the fiscal year ended December 31, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions2015;
(ixvi) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business is a Contract with a customer of the Company or any Subsidiary of its Subsidiaries after the Effective TimeCompany, including distributors, which provided for aggregate payments to the Company or any Subsidiary of the Company of more than $20 million during the fiscal year ended December 31, 2015;
(xvii) contain is (or contains provisions described in this clause (vii) that are or would reasonably be expected to be) material to the Company and its Subsidiaries, taken as a whole, and contains provisions that prohibit the Company or any of its Affiliates from competing in or conducting any material line of business or grant grants a right of exclusivity or “most favored nation” right to any Person that prevents the Company or any Affiliate of the Company its Affiliates from entering any material territory, market, market or field or freely engaging in business anywhere in the world, other than (A) Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) 90 days’ notice without payment by the Company or any of its Subsidiaries of any material penalty, (B) distribution or customer Contracts entered into in the ordinary course of business granting exclusive rights to sell or distribute certain of the Company’s products, (C) license agreements for Intellectual Property limiting the Company’s and its Subsidiaries’ use of such Intellectual Property to specified fields of use and (D) Contracts with customers entered into in the ordinary course of business granting a “most favored nation” right to such customer in respect of certain of the Company’s products or services; or
(viii) is a license, royalty or similar Contract with respect to Intellectual Property (other than generally commercially available, “off-the-shelf” software programs or non-exclusive licenses granted by the Company or any Subsidiary of the Company in the ordinary course of business which do not contain any material restriction or condition on the use or exploitation of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to Intellectual Property by the Company with annualized fees in excess or any Subsidiary of $300,000;
(xiithe Company) constitute collective bargaining agreements;
(xiii) which would reasonably be expected to involve the provision of material third-party administration payments by or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing Subsidiaries of more than $15 million per any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementstwelve-month period.
(b) As of the date of this Agreement, (i) each Each Material Contract is valid and binding on the Company or and/or any of its Subsidiaries, Subsidiaries to the extent such Person is a party thereto, as applicable, and, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, binding or in full force and effect would not constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance nonperformance would not constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received written notice of the existence of any event breach or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (iv) there are no events or conditions that which constitute, or, after notice or lapse of time or both, will constitute a default on the part of the Company or any of its Subsidiaries, or to the Knowledge of the Company, any counterparty under such Material Contract, except as would not constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (v) the Company has not received any notice in writing from any Person that such Person intends to terminate, or not renew, any Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Abbott Laboratories), Merger Agreement (Alere Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter Schedule 4.10 sets forth a list, as true and complete list of each of the date following types of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound and that relate primarily to the Purchased Assets, the Assumed Liabilities or the Business (other than Company Plans and insuranceeach, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:a “Material Contract”):
(i) are or would be required to be filed by each Contract that contains any provisions requiring the Company as a “material contract” pursuant or any of its Subsidiaries to Item 601(b)(10) indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of Regulation S-K under products of the Securities Act;
(ii) relate to Business or indemnities in connection with the formation or management licensing of any joint ventureIntellectual Property), partnership, or other similar agreement that which indemnity is material to the business of the Company and its SubsidiariesBusiness, taken as a whole;
(ii) each Contract providing for any other Person with “most-favored-nation” terms, including such terms for pricing;
(iii) provide for Indebtedness of each Contract that includes any arrangement whereby the Company or any of its Subsidiaries having an outstanding grants any right of first refusal or committed amount equal right of first offer or similar right to or in excess of $10,000,000a Third Party, other than any Indebtedness between or among any of which right is material to the Company and any of its SubsidiariesBusiness, taken as a whole;
(iv) are any keepwell all partnership, joint venture, profit sharing, or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)shareholders' agreements;
(v) have been entered into since January 1all Contracts relating to Indebtedness of the Company, 2017or any Company Subsidiary, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding150,000, including any agreement or commitment for the avoidance future loans, credit or financing in excess of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of such amount entered into by the Company or any of its Subsidiaries)a Company Subsidiary;
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or each Contract (including any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(viigovernment Contract) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing that has not been fully performed for the creation sale or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) distribution by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment in connection with the Business of materials, supplies, goods, services, equipment or other assets, except any Contract that is a purchase order for materials, supplies, goods, services, equipment or other assets entered into by the Company or any Company Subsidiary in the ordinary course of the Company of any material penaltybusiness;
(xivii) involve each agreement that commits capital expenditures after the retention of any independent contractordate hereof in an amount greater than $100,000 or, consultantwhen aggregated with all capital expenditures after the date hereof, or agency for the provision of services to the Company with annualized fees in excess a total of $300,000250,000;
(xiiviii) constitute collective bargaining agreementsall Contracts entered into since January 1, 2019 (or prior thereto, to the extent not yet consummated) relating to the disposition or acquisition of any business, securities, assets or properties, individually or in the aggregate material to the Business, taken as a whole;
(xiiiix) involve all fidelity or surety bonds or completion bonds;
(x) all other Contracts (other than Benefit Plans) that (A) require payments pursuant to the provision terms of material third-party administration any such Contract by or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any Company Subsidiary of its Subsidiaries; or
more than $150,000 annually (xivwhether or not paid in any given year) provide for the outsourcing of any material function or part of the business of on a one time basis and (B) cannot be terminated by the Company or any Company Subsidiary within thirty (30) calendar days after giving notice of its Subsidiaries termination without resulting in any material cost or penalty to the Company or any Company Subsidiary; and
(xi) all other Contracts that is necessary for are material to the conduct Purchased Assets or the operation of the business of the Company Business and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsnot previously disclosed pursuant to this Section 4.10.
(b) As of the date of this AgreementExcept for any Material Contract that has terminated or expired in accordance with its terms, (i) each Material Contract is valid and binding on and in full force and effect and enforceable against the other party or parties thereto in accordance with its terms. The Company or any of its Subsidiaries, to the extent such Person is a Subsidiaries party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all its obligations required to be performed by it it, as and when required, under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither . Neither the Company nor any of its Subsidiaries has received notice Subsidiaries, nor to the Knowledge of the existence of Company, any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, other party to a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such is in violation of or in default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse under any provision of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a . True and complete copies of the Material Adverse EffectContracts and any material amendments thereto have been made available to Purchaser prior to the date of this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (TTEC Holdings, Inc.), Asset Purchase Agreement (Alj Regional Holdings Inc)
Contracts. (a) Except for this Agreement As of the date hereof, neither the Company nor any of its Subsidiaries is a party to, and each none of their respective properties or other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act, other than any Contract that is filed as an exhibit to the Filed Company SEC Documents.
(b) Except for Contracts filed in unredacted form as exhibits to the Filed Company SEC Documents, Section 4.16(a3.10(b) of the Company Disclosure Letter sets forth a list, correct and complete list as of the date of this Agreement, and the Company has made available to Parent correct and complete copies (including all amendments, modifications, extensions, renewals, guaranties or other Contracts with respect thereto, but excluding certain names, terms and conditions that have been redacted in compliance with applicable Laws governing the sharing of information or otherwise), of:
(i) all Material Contracts. For purposes Contracts (other than Contracts of the category required to be disclosed in clause (xiv), clause (xv) or clause (xvi) of this AgreementSection 3.10(b), “Material regardless of value) of the Company or any of its Subsidiaries having an aggregate value per Contract” means , or involving payments by or to the Company or any of its Subsidiaries, of more than $750,000 on an annual basis;
(ii) all Contracts to which the Company or any of its Subsidiaries is a party party, or by which the Company, any of its Subsidiaries, Subsidiaries or any of their respective properties or assets its Affiliates is bound (other than Company Plans and insurancebound, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by that contain a covenant restricting the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness ability of the Company or any of its Subsidiaries having an outstanding (or committed amount equal to or in excess of $10,000,000which, other than any Indebtedness between or among any following the consummation of the Company and Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to compete in any business or with any person or in any geographic area;
(iii) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries);
(iv) are any keepwell or similar agreement under (A) Contract to which the Company or any of its Subsidiaries has directly guaranteed is a party granting any liabilities license to Intellectual Property, and (B) other license (other than real estate) having an aggregate value per license, or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of involving payments by the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of more than $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)750,000 on an annual basis;
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or all confidentiality agreements (other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets than in the ordinary course of business or of suppliesbusiness), products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee agreements by the Company not to acquire assets or any Subsidiary securities of a third party or agreements by a third party not to acquire assets or securities of the Company;
(viivi) restrict any Contract having an aggregate value per Contract, or grant rights to use involving payments by or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, of more than $750,000 on an annual basis that requires consent of or notice to a third party in each casethe event of or with respect to the Merger, for aggregate annual including in order to avoid a breach or onetermination of or loss of benefit under any such Contract;
(vii) all joint venture, profit sharing, partnership or other similar agreements involving co-time fees in excess investment with a third party to which the Company or any of $2,000,000, its Subsidiaries is a party (other than commercially available “off-the-shelf” software any such profit sharing or similar agreements entered into in the ordinary course of business);
(viii) any Contract or order with or from a Governmental Authority (other than ordinary course Contracts with Governmental Authorities as a customer or as a Provider) which imposes any material obligation or restriction on the Company or its Subsidiaries;
(ix) all leases, subleases, licenses under or other Contracts pursuant to which software the Company or any of its Subsidiaries use or hold any material property involving payments by or to the Company or any of its Subsidiaries of more than $750,000 on an annual basis;
(x) all material outsourcing Contracts;
(xi) all Contracts with investment bankers, financial advisors, attorneys, accountants or other advisors retained by the Company or any of its Subsidiaries involving payments to be made by or to the Company or any of its Subsidiaries after the date of this Agreement of more than $750,000 on an annual basis;
(xii) all Contracts providing for the indemnification by the Company or any of its Subsidiaries of any person, except for any such Contract that is licensed not material to the Company or any of its Subsidiaries;
(viiixiii) involve or could reasonably be expected all Contracts pursuant to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in which any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business indebtedness of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company is outstanding or any may be incurred and all guarantees of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention indebtedness of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
other person (xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to than the Company or any of its Subsidiaries; or) (except for such indebtedness or guarantees the aggregate principal amount of which does not exceed $750,000 on an annual basis and excluding trade payables arising in the ordinary course of business);
(xivi) provide for the outsourcing of any material function or part largest Contracts of the business Company and its Subsidiaries with facilities and capitated Providers (including hospitals and medical groups) in the states of California, Texas, Arizona and Colorado (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) that, in the aggregate, represent at least 60% of the total projected 2005 payments by the Company and its Subsidiaries to such Providers in each of such states and (ii) the largest Contracts of the Company and its Subsidiaries with such Providers in the states of Oklahoma, Oregon, Nevada and Washington (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) that, in the aggregate, represent at least 50% of the total projected 2005 payments by the Company and its Subsidiaries to such Providers in each of such states (collectively, the "Largest Provider Contracts");
(xv) Contracts of the Company and its Subsidiaries with the 20 largest customers in California and the 10 largest customers in the Other Core States in the aggregate (in each case measured in terms of total projected payments to the Company and its Subsidiaries during the year ending December 31, 2005) (the "Largest Customer Contracts");
(xvi) Contracts of the Company and its Subsidiaries with the 20 largest brokers, the 10 largest general agents and the largest broker for American Medical Security Group, Inc. (measured in terms of total projected payments by the Company and its Subsidiaries during the year ending December 31, 2005) (the "Largest Broker Contracts");
(xvii) any Contract with respect to any risk sharing or risk transfer arrangement or that provides for a retroactive premium or similar adjustment or withholding arrangement, pursuant to the terms of which an adjustment, premium, payment or arrangement is reasonably expected to result therefrom in an amount of $750,000 or more;
(xviii) any Contract or policy for reinsurance with third parties;
(xix) any demonstration or pilot or other material Contract with the Centers for Medicare and Medicaid Services ("CMS") or any successor thereto; and
(xx) any Contract with the Office of Personnel Management, or any successor thereto.
(i) None of the Company or any of its Subsidiaries (x) is, or has received written notice or has Knowledge that any other party to any of its Contracts is, in violation or breach of or default (with or without notice or lapse of time or both) under, or (y) has waived or failed to enforce any rights or benefits under, any Contract to which it is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company a party or any of its Subsidiariesproperties or other assets is subject, to the extent such Person is a party thereto, as applicable, and, and (ii) to the Knowledge of the Company, each other party theretothere has occurred no event giving to others any right of termination, and is in full force and effect, except where the failure to be valid, binding, amendment or in full force and effect would not constitute a Material Adverse Effect, cancellation of (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event with or condition that constitutes, or, after without notice or lapse of time or both) any such Contract except for violations, will constitutebreaches, a default on defaults, waivers or failures to enforce rights or benefits covered by clauses (i) or (ii) above that individually or in the part of the Company or any of its Subsidiaries under any Material Contract, except where such default aggregate have not had and would not constitute reasonably be expected to have a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Unitedhealth Group Inc), Merger Agreement (Pacificare Health Systems Inc /De/)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(aSchedule 4(m) of the Company Disclosure Letter sets forth a list, Schedule lists the following written Contracts of the MHE Business as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thathereof:
(i) are or would be required any Contract the performance of which is expected to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) involve consideration in excess of Regulation S-K under the Securities Act$2,000,000;
(ii) any Contract which restricts or contains limitations on the ability of any of the MHE Business or the Companies or their Subsidiaries to freely conduct business anywhere in the world or relates to confidentiality (other than confidentiality agreements that relate to (x) the formation purchase or management sale of any joint venture, partnershipgoods or services in the Ordinary Course of Business, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole(y) acquisitions or joint venture transactions);
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiariescollective bargaining agreement;
(iv) are any keepwell contract which provides for the employment of any individual on a full-time, part-time, consulting or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations other basis providing annual salary and cash bonus in excess of $10,000,000 (other than any contracts under 100,000 or which the Company provides for severance or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)change in control benefits;
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition any agreement which relates to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company Indebtedness or any of its Subsidiaries)Guaranty;
(vi) prohibit the payment of dividends any Contract concerning a partnership, joint venture or distributions in respect of the shares other similar entity or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Companyarrangement;
(vii) restrict any Contract between the Companies or grant rights to use or practice rights under material Intellectual Propertytheir Subsidiaries on the one hand, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person the Sellers or their Affiliates (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Companies and their Subsidiaries) on the other hand;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month periodprofit sharing, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penaltystock option, (y) any Company Leasestock purchase, or (z) any Contract with financial advisorsstock appreciation, investment bankersdeferred compensation, attorneys, accountants, consultants, severance or other advisors in connection with plan or arrangement for the Transactionsbenefit of its current or former directors, officers and employees;
(ix) would reasonably be expected to, individually or in any Contract under which the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company Companies or any of its their Subsidiaries after has advanced or loaned any amount to any of their directors, officers and employees outside the Effective Time;Ordinary Course of Business; and
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contractsof the foregoing, or investment management services any outstanding executed letters of intent and written offers to which the Company or any of its Subsidiaries; or
Companies and/or their Subsidiaries is party (xiv) provide including, but not limited to, offers made, but not yet accepted, for the outsourcing acquisition or sale of any material function facility, real property or part business, but excluding offers made, but not yet accepted, for the sale of goods or services in the Ordinary Course of Business). HarnCo and Sellers have made available to Investor (or will make available to Investor promptly following the date hereof) a correct and complete copy of each written contract or other agreement listed in Schedule 4(m) of the business of Disclosure Schedule. With respect to each such Contract: (A) the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid legal, valid, binding, enforceable in accordance with its terms against the Companies, their Subsidiaries and binding on the Company or any of its Subsidiariestheir Affiliates party thereto and, to the extent such Person Knowledge of the Specified Employees, the other parties thereto; (B) neither the Companies, their Subsidiaries nor their Affiliates and, to the Knowledge of the Specified Employees, no other party thereto is a party thereto, as applicablein material breach or default, and, to the Knowledge of the CompanySpecified Employees, each other party thereto, and is in full force and effect, except where no event has occurred which with notice or upon the failure to be valid, bindingexpiration of applicable grace or cure periods or both would constitute a material breach or default, or in full force and effect would not constitute a Material Adverse Effectpermit termination, modification or acceleration under, the Contract; (iiC) neither the Company and each of its SubsidiariesCompanies, their Subsidiaries nor their Affiliates and, to the Knowledge of the CompanySpecified Employees, any no other party theretoparty, has performed all obligations required to be performed by it under each Material repudiated any material provision of the Contract; and (D) none of HarnCo, except where such noncompliance would not constitute a Material Adverse EffectSellers, (iii) neither the Company Companies nor any of its the Companies' Subsidiaries has received notice of the existence granted any release or waiver of any event or condition that constitutes, or, after notice or lapse material provision under the Contract outside the Ordinary Course of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectBusiness.
Appears in 2 contracts
Samples: Recapitalization Agreement (Morris Material Handling Inc), Recapitalization Agreement (MMH Holdings Inc)
Contracts. (ai) Except for this Agreement and each Contract Contracts filed as an exhibit exhibits to the Filed SEC Documents, Section 4.16(a3.01(i) of the Company Disclosure Letter sets forth a complete and correct list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which and the Company or any of its Subsidiaries is a party or has made available to Parent complete and correct copies (including by which filing with the CompanySEC), any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatof:
(iA) are or each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(iiB) relate each Contract to which the Company or any of its Subsidiaries is a party that restricts the ability of the Company or any of its Subsidiaries to compete in any business or with any Person in any geographical area (other than any such restriction under any Real Property Lease) in a manner that is material to the formation Company and its Subsidiaries, taken as a whole;
(C) each loan and credit agreement, note, debenture, bond, indenture and other similar Contract pursuant to which any Indebtedness of the Company or management any of its Subsidiaries, in each case in excess of $5,000,000 is outstanding or may be incurred, other than any such Contract between or among any of the Company or any of its Subsidiaries;
(D) each Contract to which the Company or any of its Subsidiaries is a party that by its terms calls for aggregate payments to or by the Company or any of its Subsidiaries of more than $2,000,000, except for (1) Real Property Leases or (2) any such Contract that may be canceled, without any penalty or other liability to the Company or any of its Subsidiaries in excess of $250,000, within one year;
(E) each Contract entered into within five years of the date of this Agreement, to which the Company or any of its Subsidiaries is a party for the acquisition or disposition by the Company or any of its Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $5,000,000 except for acquisitions and dispositions of properties and assets in the ordinary course of business (including acquisitions and dispositions of inventory);
(F) each Contract to which the Company or any of its Subsidiaries is a party constituting a joint venture, partnership, limited liability or other similar agreement (excluding licensing Contracts) relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and its Subsidiaries, taken as a whole;; and
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (zG) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, respect to the employment of any director or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede executive officer of the Company’s ability ; Each such Contract described in clauses (A) through (G) is referred to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant herein as a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements“Material Contract”.
(bii) As Each of the date of this Agreement, (i) each Material Contract Contracts is valid and binding on the Company or any the Subsidiary of its Subsidiaries, to the extent such Person is a Company party thereto, as applicable, thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure for such failures to be valid, binding, valid and binding or to be in full force and effect that, individually or in the aggregate, would not constitute have a Material Adverse Effect, (ii) . None of the Company and each or any Subsidiary of the Company has received written notice of default under any Material Contract by the Company or any of its Subsidiaries, Subsidiaries and, to the Knowledge of the Company, there is no default by any other party thereto, and no event has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither occurred that with the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, the giving of notice or both would constitute a default on the part of thereunder by the Company or any of its Subsidiaries under or, to the Knowledge of the Company, by any Material Contractother party thereto, in each case except where such default as, individually or in the aggregate, would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute have a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Arrow International Inc), Merger Agreement (Teleflex Inc)
Contracts. (a) Except for this Agreement and each Contract for Contracts filed as an exhibit exhibits to the Filed SEC Documents, Section 4.16(a4.11(a) of the Company Disclosure Letter sets forth a list, as true and complete list of each of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all following Contracts to which the Company or any of its Subsidiaries is a party or by which and that is in effect as of the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatdate hereof:
(i) are or each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under promulgated by the Securities ActSEC;
(ii) relate to the formation or management of any joint ventureeach loan agreement, partnershipcredit agreement, or note, debenture, bond, indenture and other similar agreement that is material Contract pursuant to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for which any Indebtedness of the Company or any of its Subsidiaries having an is outstanding or committed may be incurred in an aggregate principal amount equal to or in excess of $10,000,000250,000, or which obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any other person, other than the Company or any Indebtedness between of its wholly owned Subsidiaries;
(iii) each Contract (other than a Contract solely among the Company and its wholly owned Subsidiaries) that (A) by its terms calls for payments by or among to the Company or any of its Subsidiaries of more than $1,000,000 in the aggregate during the twelve (12)-month period ended on the date hereof, or (B) by its terms, contractually requires aggregate payments to or by the Company or any of its Subsidiaries under such Contract of more than $1,000,000 over the remaining term of such Contract, in each case other than (x) Contracts governing Company Equity Awards and/or (y) Contracts relating to the employment of, or the performance of services by, any director, officer, employee, consultant or independent contractor of the Company and any or a Subsidiary of its Subsidiariesthe Company that are at-will or are terminable by the Company or the relevant Subsidiary without liability (other than payment of compensation for services rendered through the date of termination);
(iv) are each Contract to which the Company or any keepwell of its Subsidiaries is a party entered into since January 31, 2015 for the acquisition or similar agreement under disposition by the Company or any of its Subsidiaries of any properties, rights or assets with an aggregate value in one or a series of related transactions in excess of $500,000 (except for acquisitions of supplies and inventory, dispositions of inventory, and dispositions of equipment that is no longer used in the operations of the Company or any of its Subsidiaries, and except for sales of products or services, in each case, in the ordinary course of business);
(v) any Contract pursuant to which the Company or any of its Subsidiaries has directly guaranteed any liabilities continuing indemnification, “earn-out” or similar contingent payment obligations outstanding as of another Person or under the date hereof; provided that the foregoing reference to continuing indemnification obligations shall not include indemnification obligations that (A) with respect to Contracts that do not involve Intellectual Property Rights, were entered into in the ordinary course of business and (B) with respect to Contracts involving Intellectual Property Rights, are set forth in customer, distributor and reseller agreements entered into in the ordinary course of business and which another Person has directly guaranteed any liabilities or indemnification obligations relate to infringement of Intellectual Property Rights thereunder);
(vi) each Contract that (A) restricts the ability of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than Subsidiaries to compete with any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of suppliesin any geographical area or to solicit customers, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in (B) restricts the conduct of business right of the Company or any of its SubsidiariesSubsidiaries to sell to or purchase from any specific person or category of persons or any specific industry or market, (C) restricts the right of the Company or any of its Subsidiaries to hire any person, other than non-solicitation provisions restricting the hiring of employees of the counterparty contained in non-material vendor, customer, confidentiality, recruiting, outsourcing or supply agreements entered into in the ordinary course of business, (D) grants any counterparty thereto or any other person “most favored nation” or “preferred” customer status or (E) grants any counterparty exclusivity on any basis;
(vii) each Contract that is a settlement, conciliation or similar Contract (A) with any Governmental Authority, (B) pursuant to which the Company or any of its Subsidiaries is obligated after the date hereof to make any payments to any Governmental Authority or (C) that would otherwise limit the operation of the Company or any of its Subsidiaries (or Parent or any of its Affiliates) in any material respect after the Offer Closing or the Merger Closing;
(viii) each Contract to which the Company or any of its Subsidiaries is a party involving the development for, or licensing to, the Company or any of its Subsidiaries of any material Intellectual Property or material Intellectual Property Rights or pursuant to which the Company or any of its Subsidiaries obtains any right to use, or covenant not to be sued under, any material Intellectual Property Rights (except for (A) licenses of Commercially Available Software and Open Source Materials and (B) employee inventions and confidentiality agreements and consulting and contractor agreements that, in each case, were entered into in the Ordinary Course of Business);
(viix) prohibit each Contract pursuant to which the Company or any of its Subsidiaries grants any right to use, or covenant not to be sued under, any Intellectual Property Rights (other than customer, distributor, reseller, sales agent, marketing, contract development, contract manufacturing, logistics, and product support agreements entered into in the ordinary course of business);
(x) each Contract obligating the Company or any of its Subsidiaries to pay any other person royalties, fees, commissions or other amounts (excluding sales commissions payable to employees and sales agents according to the Company’s commissions plan made available to Parent) upon or for any use by the Company or any of its Subsidiaries of any Intellectual Property Rights (excluding Commercially Available Software) or upon the sale, lease, license, distribution, provision or other disposition of any Company Product;
(xi) each Contract that prohibits the payment of dividends or distributions in respect of the shares of, or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares of, any equity interest of, or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Propertyguarantees by, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viiixii) involve each Contract that contains a standstill or could reasonably be expected similar agreement pursuant to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by which the Company or any Subsidiary of its Subsidiaries has agreed not to acquire assets or securities of a third party (A) entered into since January 31, 2015 or (B) which contains standstill or similar obligations that have not yet terminated;
(xiii) each Contract with any director, executive officer (as such term is defined in the Exchange Act) or five percent (5%) stockholder of the Company or any of their respective Affiliates (other than the Company or any material penalty, (yof its Subsidiaries) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactionsimmediate family members;
(ixxiv) would reasonably be expected toeach Contract that grants to any person any right of first offer, individually right of first refusal or in option to purchase, lease, sublease, use, possess or occupy all or any substantial part of the aggregatematerial assets, prevent, materially delay, rights or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business properties of the Company or any of its Subsidiaries after the Effective TimeSubsidiaries;
(xxv) contain provisions that prohibit the Company (A) any Contract with a Top Supplier or Top Customer and (B) any of its Affiliates from competing in Contract which involves any material line long-term commitment to any supplier for a term in excess of three (3) years from the date hereof;
(xvi) each Contract with any commercial agents, channel partners, distributors, resellers or other third-party sales intermediaries that relates to sales of Company products (other than customer, distributor, reseller and sales agent agreements entered into in the ordinary course of business that (A) relate to sales within the United States or grant a right (B) relate to sales outside the United States of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere less than $1,500,000 in the worldaggregate in the Company’s fiscal year ended January 31, other than Contracts that can be terminated 2017);
(including such restrictive provisionsxvii) by the Company each Contract with a university or any of its Subsidiaries on less than ninety (90) days’ notice without payment by similar academic institution pursuant to which the Company or any Subsidiary has utilized or will utilize any funding, personnel or facility or other resources of the Company of such person in connection with any material penaltyresearch or development activities;
(xixviii) involve the retention of any independent each Company Government Contract or Company Government Subcontract, direct as a prime contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material indirect as a subcontractor through a third-party administration prime contractor, including through a reseller, distributor or other policy or claims administration services with respect similar third party pursuant to any Insurance Contracts, or investment management services a master agreement providing for annual aggregate payments to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries under such master agreement in excess of $2,000,000, and any subcontract issued to a third party under a Company Government Contract; provided that, for the purposes of this subparagraph (xviii), the term “Governmental Authority” as currently conductedused in the definitions of “Company Government Contract” and “Company Government Subcontract” shall be limited to Contracts with any U.S. federal governmental, administrative, judicial, arbitral, legislative, executive, regulatory or self-regulatory authority, instrumentality, agency, commission or body;
(xix) each Contract that relates to a partnership, joint venture or similar arrangement; and
(xx) any Contract not described in any other than managing agency agreements subsection of this Section 4.11(a) which, if breached, terminated or managing general underwriting agreementsnot renewed, would have a Material Adverse Effect. Each Contract of the type described in this Section 4.11(a) (or set forth on Section 4.11(a) of the Company Disclosure Letter or filed as an exhibit to the Filed SEC Documents) is referred to herein as a “Material Contract”.
(b) As The Company has made available to Parent true, complete and unredacted copies of each Material Contract. Each of the date of this Agreement, (i) each Material Contract Contracts is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a Subsidiar(ies) party thereto, as applicable, thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure for such failures to be valid, binding, valid and binding or to be in full force and effect that have not had and would not constitute have, individually or in the aggregate, a Material Adverse Effect, (ii) the . The Company and each of its Subsidiaries, and, to the Knowledge of the Company, any each other party thereto, has performed all material obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Contract in all material respects. There is no default under any Material Adverse Effect, (iii) neither Contract by the Company nor or any of its Subsidiaries has received notice or, to the Knowledge of the existence of Company, any other party thereto, and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, will would constitute, a default on the part of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, nor has the Company or any of its Subsidiaries received any notice of any such default, event or condition, except as where any such default, event or condition, individually or in the aggregate, has not had and would not constitute have a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Hewlett Packard Enterprise Co), Merger Agreement (Nimble Storage Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) 3.16 of the Company Disclosure Letter sets forth a list, as lists each of the date following types of this Agreementbonds, of debentures, notes, mortgages, indentures, guarantees, licenses, leases, purchase or sale orders or other contracts, commitments, agreements, instruments, arrangements, understandings, undertakings, permits, or franchises, whether oral or written (each, including all Material Contracts. For purposes of this Agreementamendments thereto, a “Material Contract” means all Contracts ”), to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is legally bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatas of the date of this Agreement:
(i) are or any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities ActAct or disclosed by the Company on a Current Report on Form 8-K;
(ii) relate any Contract that limits the ability of the Company or any of its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to compete in any line of business or with any Person or in any geographic area, or that restricts the formation right of the Company and its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to sell to or purchase from any Person, or that grants the other party or any third Person “most favored nation” status or any type of special discount rights for future purchases;
(iii) any Contract the primary subject matter of which is the formation, creation, operation, management or control of any a joint venture, partnership, partnership or limited liability company or other similar agreement or arrangement;
(iv) any Contract relating to Indebtedness of the Company or any of its Subsidiaries and having an outstanding principal amount in excess of $100,000;
(v) any Contract involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration (in one or a series of transactions) under such Contract of $350,000 or more (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practice);
(vi) any Contract that by its terms calls for aggregate payment or receipt by the Company and its Subsidiaries under such Contract of more than $250,000 over the remaining term of such Contract that is not terminable (in the case of any such Contract that calls for such aggregate payment) or terminable (in the case of any such Contract that calls for such aggregate receipt), as the case may be, without penalty to the Company and its Subsidiaries on 120 days’ or less notice (other than (A) purchase orders for Company inventory, (B) service Contracts with customers of the Company or any of its Subsidiaries with respect to which the customer sites holding the products that are the subject of such Contracts are listed on Section 3.16(a)(vi)(B) of the Company Disclosure Letter, (C) non-executory Contracts for the sale of Company products with respect to which the customer sites holding the products that are the subject of such Contracts are listed on Section 3.16(a)(vi)(C) of the Company Disclosure Letter; and (D) Company Plans, other than employment agreements, severance agreements, change of control Contracts or similar agreements);
(vii) any Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification (other than Contracts for the sale of Company products and warranties covering Company products given in the ordinary course of business), guarantee, “earn-out” or other contingent payment obligations, in each case that the Company reasonably anticipates will involve payments by the Company or any of its Subsidiaries in excess of $100,000;
(viii) any Contract that is a license agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal , pursuant to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed is a party and licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or its Subsidiaries, other than (A) license agreements for software that is generally commercially available and that is licensed in object code form solely for internal use and (B) as contained in sales Contracts in the ordinary course of business;
(ix) any liabilities Contract executed by the Company or any of its Subsidiaries since May 8, 2007 that provides for any confidentiality, standstill or similar obligations on the part of another Person the Company or under which another Person has directly guaranteed its Subsidiaries, except for such Contracts entered into in the ordinary course of business consistent with past practice;
(x) any liabilities Contract that obligates the Company or obligations any of its Subsidiaries to make any equity commitment or loan to a third party in an amount in excess of $100,000;
(xi) any Contract not entered into in the ordinary course of business between the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (on the one hand, and any Affiliate thereof other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit involving the issuance payment of more than $100,000;
(xii) any guarantee Contract relating to XXXX, any investment therein by the Company and its Subsidiaries or any Subsidiary rights relating thereto;
(xiii) any executory Contract with any Governmental Entity (other than any Contract for the purchase of the Company;’s products by a Governmental Entity); or
(viixiv) restrict any Contract that requires the consent of, or grant rights to use or practice rights under material Intellectual Propertythe giving of notice to, including agreements providing for the creation or development any third party in connection with a “change of material Intellectual Property or access and use control” of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person that would or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could would reasonably be expected to involve aggregate payments prevent, delay or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by impair the Company or any Subsidiary consummation of the transactions contemplated by this Agreement. Each contract of the type described in clauses (i) through (xiv) is referred to herein as a “Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;Material Contract.”
(ixb) would reasonably be expected toExcept, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability as would not reasonably be expected to consummate the Transactions or Parent’s ability to own and/or conduct the business of the have a Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this AgreementMaterial Adverse Effect, (i) each Company Material Contract is valid and binding on the Company or and any of its Subsidiaries, Subsidiaries to the extent such Person Subsidiary is a party thereto, as applicable, and, and to the Knowledge knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable in accordance with its terms (except to the extent that enforceability may be limited by applicable bankruptcy, except where insolvency, moratorium, reorganization or similar Laws affecting the failure enforcement of creditors’ rights generally and subject to be valid, binding, or in full force general principles of equity); and effect would not constitute a Material Adverse Effect, (ii) there is no violation or default under any Company Material Contract by the Company and each or any of its Subsidiaries, andSubsidiaries or, to the Knowledge knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, will would constitute, a default on the part of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto under any such Company Material Contract, nor has the Company or any of its Subsidiaries received any written notice of any such default, event or condition, except where any such default default, event or condition, individually or in the aggregate, has not had and would not constitute reasonably be expected to have a Company Material Adverse Effect. The Company has made available to Parent true and complete copies of all Company Material Contracts, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of including any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectamendments thereto.
Appears in 2 contracts
Samples: Merger Agreement (TomoTherapy Inc), Merger Agreement (Accuray Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Seller Disclosure Schedule lists (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Schedule that lists) every binding Contract of the types in the following list to which the Company Disclosure Letter sets forth or any Company Subsidiary is, as of the date hereof, a listparty or by which any of their respective properties or assets are bound (all such Contracts, the “Material Contracts”):
(i) (x) the master framework agreements and any ancillary Contracts between the Company or any Company Subsidiary and the Top Customers of the Business, (y) the supply agreements and any related Contracts between the Company or any Company Subsidiary and the Top Suppliers of the Business, and (z) any other Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $30,000,000 in the current fiscal year or in any one-year period over its remaining term;
(ii) any Contract under which the Company or any Company Subsidiaries has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any capitalized lease obligations in excess of $500,000;
(iii) any Contract that requires capital expenditures in excess of $1,000,000 and is not fully performed as of the date of this Agreement;
(iv) any Contract involving an amount in excess of $300,000 entered into with (x) an officer or director of Seller, the Company or any Company Subsidiary or any Affiliate of all Material Contracts. For purposes Seller, the Company or any Company Subsidiary (other the Company and the Company Subsidiaries) or (y) any entity controlled by an officer or director of this AgreementSeller, the Company or any Company Subsidiary, other than, in either case, employment agreements with any Employee;
(v) any Contract that has an undertaking that restricts the Business in any material respect from engaging in any business activity (including any restriction from competing in any line of business in any geographic region in the world or with any Person);
(vi) any Contract with any Governmental Authority that would prohibit Seller, the Company or any Company Subsidiary from relocating, closing or terminating any of the Business’s operations or facilities;
(vii) any Contract currently expected to result in the payment or receipt by the Business of more than $10,000,000 in the current fiscal year or in any one-year period over its remaining term which grants any exclusive rights to any customer or supplier of the Business, including distribution rights, “Material Contractmost-favored nation” means rights or rights of first refusal or contains any provision that requires the Business to purchase its total requirements of any product or service from a third party, Guarantor or Subsidiary of Guarantor or that contain “take or pay” provisions (excluding provisions providing for liability in the event of cancellation of orders inside a specified lead time);
(viii) all distribution, dealer, representative or sales agency agreements with the five largest counterparties to such agreements to the Business measured by dollar value of the purchases made by the Business from such supplier during the nine months ended on the Balance Sheet Date;
(ix) all leases of Equipment relating to the Business providing for lease payments in excess of $1,000,000 per fiscal year for any lease or group of related leases;
(x) any employment or consulting agreement with any individual listed on Section 1.01(e) of the Seller Disclosure Schedule providing for annual cash compensation of $300,000 or more;
(xi) all Contracts pursuant to which the Company or any of Company Subsidiary receives or grants a license to Intellectual Property from or to any other Person (including Contracts entered into by Seller or its Subsidiaries Affiliates primarily for the Business under which Company Intellectual Property is a party licensed to any other Person, but excluding other Contracts entered into by Seller or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound Affiliates (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, ); in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant that are material to the Investment Guidelines, conduct or operation of supplies, products, properties, the Business (other than (x) commercially available software or other assets software-as-a-service agreements or (y) licenses or grants of rights ancillary to commercial agreements entered into in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractorwith respect to manufacturing, consultantcustomer, or agency for the provision of services to the Company with annualized fees in excess of $300,000supply, distribution, retail and marketing agreements));
(xii) constitute collective bargaining agreementsany Contract that establishes a joint venture, partnership, strategic alliance or other similar arrangement that involves a sharing of profits, revenue or expenses with any third party, Guarantor or Subsidiary of Guarantor;
(xiii) any agreement that relates to settlement or conciliation of any Actions, the performance of which will involve payment on or after the provision Closing Date of material third-party administration consideration in excess of $5,000,000 or other policy will, on or claims administration services with respect after the Closing Date impose (or continue to impose) any Insurance Contractsinjunctive or similar equitable relief on the Company, or investment management services to the Company Subsidiaries or any of its Subsidiariesthe Business; orand
(xiv) provide for the outsourcing any Contract that is an agreement with any Affiliate of any material function or part of the business of Seller (other than the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conductedSubsidiaries) that will not be terminated prior to Closing. For the avoidance of doubt, other than managing agency agreements no representation or managing general underwriting agreementswarranty is made in this Section 4.16 regarding any Contracts that are Excluded Assets.
(b) As Except for terminations in accordance with the terms of such agreements after the date hereof, each agreement listed on Section 4.16(a) of the Seller Disclosure Schedule is a legal, valid and binding obligation of the Company or one of the Company Subsidiaries, as the case may be, enforceable in all material respects against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law. Seller has made available to Purchaser a complete and correct copy of each written agreement listed on Section 4.16(a) of the Seller Disclosure Schedule, in each case as amended, supplemented or otherwise modified through (and including) the date of this Agreement, (i) each Material Contract is valid and binding except for redactions that are apparent on the face of such copy.
(c) As of the date hereof, to Seller’s Knowledge, no party to any agreement listed on Section 4.16(a) of the Seller Disclosure Schedule has exercised any termination rights with respect thereto.
(d) Neither the Company or nor any of its Subsidiaries, to the extent such Person Company Subsidiaries is a party thereto, as applicable, in material breach or material default under any agreement listed on Section 4.16(a) of the Seller Disclosure Schedule and, to the Knowledge of the CompanySeller, each no other party thereto, and to any such agreement is in full force and effect, except where the failure to be valid, binding, material breach or in full force and effect would material default thereunder which has not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectbeen waived.
Appears in 2 contracts
Samples: Acquisition Agreement (Arris Group Inc), Acquisition Agreement (Arris Group Inc)
Contracts. (aA) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
Subsections (i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
through (vi) prohibit the payment of dividends or distributions in respect PART A OF SCHEDULE 3.1(O) each contain a complete and accurate listing of the shares following contracts, agreements, commitments, leases, licenses, arrangements, instruments and obligations, whether written or capital stock of the Company or any of its Subsidiariesoral (and, prohibit the pledging of the shares or capital stock of if oral, a complete and accurate summary thereof), to which the Company or any Subsidiary of the Company is a party:
(i) each contract, agreement, commitment, lease, license, arrangement, instrument and/or obligation which is reasonably likely to involve aggregate annual payments by or prohibit to the issuance Company or any Subsidiary of any guarantee by the Company of more than $50,000;
(ii) all collective bargaining agreements and Plans of the Company maintained for or providing benefits to employees of, or independent contractors or other agents for, the Company or any Subsidiary of the Company;
(viiiii) restrict all contracts and agreements relating to (A) any indebtedness, notes payable (including notes payable in connection with acquisitions), accrued interest payable or grant rights to use other obligations for borrowed money, whether current, short-term, or practice rights under material Intellectual Propertylong-term, including agreements providing for the creation secured or development unsecured, of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (yB) any Company Lease, purchase money indebtedness or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, earn-out or other advisors similar obligation in connection with the Transactions;
(ix) would reasonably be expected to, individually respect of purchases of property or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) assets by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (iiC) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all lease obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under leases which are capital leases in accordance with GAAP, (D) any Material Contractfinancing of the Company or any of its Subsidiaries effected through "special purpose entities" or synthetic leases or project financing, except where such default would not constitute a Material Adverse Effect(E) any obligations of the Company or any of its Subsidiaries in respect of banker's acceptances or letters of credit (other than stand-by letters of credit in support of ordinary course trade payables), (F) any obligation or liability of the Company or any of its Subsidiaries with respect to interest rate swaps, collars, caps, currency derivatives and similar hedging obligations or (G) any guaranty of any of the foregoing (the liabilities and obligations referred to in (A) through (G) above, "COMPANY INDEBTEDNESS") or any Liens upon any properties or assets of the Company or any Subsidiary of the Company as security for Company Indebtedness;
(iv) there are no events all leases or conditions subleases relating to real property;
(v) all contracts and agreements that constituterestrict the ability of the Company and/or any Subsidiary or affiliate of, or successor to, the Company, or, after notice to the knowledge of the Company, any executive officer of the Company or lapse any Subsidiary thereof, to compete in any line of time business or bothwith any Person or in any geographic area or during any period of time, will constitute or grant any exclusive license to Company Owned IP; and
(vi) all other contracts, agreements, commitments, leases, licenses, arrangements, instruments and/or obligations, whether or not made in the ordinary course of business, which are material to the Company or any Subsidiary of the Company in the conduct of their respective businesses, or the termination or cancellation of which would have or would reasonably be expected to have a default on the part of any counterparty under such Material Contract, except as would not constitute a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Advanced Technology Industries Inc), Merger Agreement (Advanced Technology Industries Inc)
Contracts. (ai) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a3.1(p) of the Company Disclosure Letter sets forth contains a list, as list of the date following contracts, correct, current and complete copies of this Agreement, which have been made available to the Purchaser:
(A) any lease of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company real property by Four Seasons or any of its Subsidiaries is a party subsidiaries, as tenant, with third parties providing for annual rentals of $1,000,000 or by more;
(B) any Contract under which the Company, Four Seasons or any of its Subsidiaries, or any subsidiaries is obliged to make payments on an annual basis in excess of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by $2,500,000 in the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Actaggregate;
(iiC) relate to the formation or management of any partnership, limited liability company agreement, joint venture, partnership, alliance agreement or other similar agreement that is material or arrangement relating to the formation, creation, operation, management, business or control of any partnership or joint venture which is not a wholly-owned subsidiary of Four Seasons (other than any such agreement or arrangement relating to the operation or business of a property in the Company ordinary course and its Subsidiaries, taken as a wholewhich is not material with respect to such property) where Four Seasons’ obligations with respect to any such partnership or joint venture exceed $5,000,000 individually where such obligations arise from Management Agreements or exceed $2,500,000 individually where such obligations do not arise from Management Agreements;
(iiiD) provide any Contract (other than with or among wholly-owned subsidiaries) under which Indebtedness for Indebtedness borrowed money in excess of the Company $2,500,000 is outstanding or may be incurred or pursuant to which any property or asset of Four Seasons or any of its Subsidiaries having an outstanding subsidiaries is mortgaged, pledged or committed amount equal otherwise subject to a Lien (other than a Permitted Lien), or any Contract restricting the incurrence of Indebtedness by Four Seasons or any wholly-owned subsidiary or the incurrence of Liens (other than Permitted Liens) on any Properties or securities of wholly-owned subsidiaries or restricting the payment of dividends or the transfer of any Owned Real Properties;
(E) except pursuant to any Management Agreement or any agreement relating thereto, any Contract that purports to limit the right of Four Seasons or any of its subsidiaries or affiliates to, in any material respect (i) engage in any line of business, or (ii) compete with any person or operate in any location;
(F) any Contract providing for the sale or exchange of, or option to sell or exchange, any Property with a fair market value in excess of $10,000,0005,000,000, other than or for the purchase or exchange of, or option to purchase or exchange, any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations Property with a fair market value in excess of $10,000,000 5,000,000 entered into in the past 12 months or in respect of which the applicable transaction has not been consummated;
(G) any Contract entered into in the past 12 months or in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition, directly or indirectly (by amalgamation, merger or otherwise), of assets (other than any contracts under which the Company Contracts referenced in clause (F) of this Section 3.1(p)(i)) or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, person for aggregate consideration under such Contract in excess of $10,000,000 (excluding2,500,000, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or in each case other assets than in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful and in the conduct of business of the Company a manner consistent with past practice;
(H) each Contract pursuant to which Four Seasons or any of its Subsidiariessubsidiaries or affiliates manages, operates or provides goods or services to or for any hotel, resort, fractional interest program, condominium, development, food and beverage operation or other similar business or property of a third party owner (together with any Contract related thereto, the “Management Agreements”);
(vi) prohibit the payment of dividends , and each franchise or distributions in respect of the shares or capital stock of the Company other agreement pursuant to which Four Seasons or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or subsidiaries grants any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by a third party (x) the Company other than Four Seasons or any of its Subsidiaries wholly-owned subsidiaries) to a third Person operate any hotel, resort, fractional interest program, condominium, development, food and beverage operation or (y) a third Person other similar business or property utilizing any of the Intellectual Property Rights, other than agreements incidental to the Company operation of a particular hotel property in the ordinary course of business;
(I) except for any radius restrictions contained in any Management Agreement, any standstill or similar Contract currently restricting the ability of Four Seasons or any of its Subsidiariessubsidiaries to offer to purchase or purchase the assets or equity securities of another person; and
(J) any Contract (other than Contracts referenced in clauses (A) through (I) of this Section 3.1(p)(i)) which has been filed by Four Seasons or its affiliates with Securities Authorities as a material contract and forming part of Four Seasons’ Public Disclosure Record (the Contracts described in clauses (A) through (J), together with all exhibits and schedules thereto being, the “Material Contracts”).
(ii) None of Four Seasons or any of its subsidiaries or affiliates or, to the knowledge of Four Seasons, any of the other parties thereto, is in breach or violation of, or default (in each case, for aggregate annual with or one-without notice or lapse of time fees in excess or both) where such breach or violation of, or default, has resulted in, or is reasonably likely to result in, a right of $2,000,000termination or other material remedy by any party thereto under, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company any Management Agreement, and none of Four Seasons or any of its Subsidiaries;subsidiaries or affiliates has received or given any notice of default under any Management Agreement which remains uncured and, to the knowledge of Four Seasons, there exists no state of facts which after notice or lapse of time or both would constitute a default or breach of such Management Agreement. All Management Agreements are in full force and effect without modification thereto (subject to the effects of bankruptcy, insolvency, reorganization, moratorium or laws relating to or affecting creditors’ rights generally).
(viiiiii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) Except as has not and would reasonably be expected tonot, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability reasonably be expected to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute have a Material Adverse Effect, (iia) the Company and each none of Four Seasons, its Subsidiaries, andsubsidiaries or, to the Knowledge knowledge of Four Seasons, any of the Companyother parties thereto, is in breach or violation of, or default (in each case, with or without notice or lapse of time or both) under, any Contract (other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iiithan the Management Agreements) neither the Company nor and none of Four Seasons or any of its Subsidiaries subsidiaries has received or given any notice of default under any such Contract which remains uncured, and (b) to the existence knowledge of any event or condition that constitutesFour Seasons, or, there exists no state of facts which after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default both would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part or breach of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectContract (other than a Management Agreement).
Appears in 2 contracts
Samples: Acquisition Agreement (Four Seasons Hotels Inc), Acquisition Agreement (Cascade Investment LLC)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a listSchedule 4.13(a) lists, as of the date of this Agreement, each Contract that is of all Material Contracts. For purposes a type described below:
(i) any Contract to which the Company or any of this Agreementthe Company Subsidiaries is a party relating to indebtedness for borrowed money (other than intercompany indebtedness) or capital leases (in each case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $250,000;
(ii) any Contract with, respectively, the thirty (30) largest customers and thirty 30 largest suppliers (measured by dollar volume of purchases or sales, respectively) of the Company and the Company Subsidiaries during the fiscal year ended March 31, 2013;
(iii) any Contract to which the Company or any of the Company Subsidiaries is a party granting a right of first refusal, right of first offer or similar preferential right to purchase or acquire any of the Company’s or any of the Company Subsidiaries’ capital stock or assets;
(iv) any Contract that, to the Company’s Knowledge, (i) purports to limit either the type of business in which the Company or any of the Company Subsidiaries (or, after the Effective Time, Parent or any of its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (ii) requires the disposition of any assets or line of business of the Company or any of its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries), (iii) grants “Material Contractmost favored nation” means all Contracts status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and any of the Company Subsidiaries or (iv) prohibits or limits the right of the Company or any of the Company Subsidiaries to make, sell or distribute any products or services (other than customary employee non-solicitation provisions entered into in the Ordinary Course), except, in each case in the foregoing clauses (i) through (iv), for any such Contract that is not material to the Company and the Company Subsidiaries taken as a whole;
(v) any Contract to which the Company or any of the Company Subsidiaries is a party with respect to any partnership or other joint venture in which the Company or any Company Subsidiary has an ownership interest (other than a Contract solely between the Company or a Company Subsidiary, on the one hand, and one or more Company Subsidiaries, on the other hand);
(vi) any Contract pursuant to which the Company or any of the Company Subsidiaries has an option or right to purchase the assets or securities of another Person (not including purchases of raw materials, equipment and inventory in the Ordinary Course) that would entail a payment in excess of $2,500,000 in the aggregate;
(vii) any Contract that obligates the Company or any of the Company Subsidiaries to make any earn-out payments of a material amount based on future performance of an acquired business or assets;
(viii) any Contract to which the Company or any of the Company Subsidiaries is a party containing a standstill or similar agreement pursuant to which one party has agreed not to acquire the assets or securities of the other party or any of its Affiliates, or a put, call or similar right pursuant to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would could be required to be filed by the Company purchase or sell, as applicable, any equity interests of any Person or assets that have a “material contract” pursuant to Item 601(b)(10) fair market value or purchase price of Regulation S-K under the Securities Actmore than $1,000,000;
(iiix) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of Contract between the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness on the one hand, and any director or officer of the Company or any of its Subsidiaries having an outstanding Person beneficially owning five percent (5%) or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any more of the Company and any of its Subsidiariesoutstanding Shares, on the other hand, excluding Benefit Plans;
(ivx) are any keepwell or similar agreement under which Contract providing for indemnification by the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or Subsidiaries of any of its SubsidiariesPerson, in each case involving liabilities or obligations in excess of $10,000,000 (other than except for any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by is (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person not material to the Company or any of its Subsidiariesthe Company Subsidiaries as a whole or (y) entered into in the Ordinary Course; and
(xi) any material Contract for the license of, in each caseor containing any covenant not to xxx or waiver or release under, for aggregate annual any Intellectual Property granted to or one-time fees in excess of $2,000,000, other than commercially available “from the Company (excluding commercial off-the-shelf” shelf for shrink wrap software licenses under which software is licensed to the Company that has not been materially modified or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementscustomized).
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Consolidated Graphics Inc /Tx/), Merger Agreement (RR Donnelley & Sons Co)
Contracts. (ai) Except as disclosed on Schedule 4.03(i)(i), ICI is not a party to, or bound by, any Contract that is:
(A) a written employment agreement or employment contract;
(B) a collective bargaining agreement or other Contract with any labor organization, union or association;
(C) a covenant not to compete;
(D) a Contract with (1) any shareholder of ICI, (2) any Affiliate of ICI or (3) any director, officer or employee of ICI or any of its Affiliates (other than employment agreements and employment contracts described in clause (A) above);
(E) a lease, sublease or similar Contract with any Person under which ICI is a lessor or sublessor of, or makes available for this Agreement and use to any Person, (1) any Real Estate or (2) any portion of any premises otherwise occupied by ICI;
(F) a lease, sublease or similar Contract with any Person under which ICI is a lessor or sublessor of, or makes available for use to any Person, any Personal Property of ICI;
(1) a continuing Contract for the future purchase of materials, supplies or equipment (other than purchase orders for Inventory in the ordinary course of business consistent with past practice), (2) a Contract for management, service, consulting or similar services or (3) a Contract for advertising services;
(H) a license, option, agreement or other Contract relating in whole or in part to any Intellectual Property (including any license, option, agreement or other Contract under which ICI is licensee or licensor of any Intellectual Property) of ICI;
(1) a Contract under which ICI has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any Person or (2) any other note, bond, debenture or other evidence of indebtedness issued to any Person;
(J) a Contract (including any so-called take-or-pay or keepwell agreement) under which (1) any Person has, directly or indirectly, guaranteed indebtedness, liabilities or obligations of ICI or (2) ICI has, directly or indirectly, guaranteed indebtedness, liabilities or obligations of any other Person (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(K) a Contract filed as an exhibit under which ICI has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than extensions of trade credit in the ordinary course of business);
(L) a Contract providing for indemnification of any Person with respect to liabilities relating to the Filed SEC Documentsbusiness of ICI;
(M) a power of attorney (other than a power of attorney given in the ordinary course of business with respect to routine tax matters);
(N) a Contract not made in the ordinary course of business;
(O) a confidentiality agreement, Section 4.16(aother than in the ordinary course of business;
(P) a Contract (including a purchase order) involving payment by ICI of the Company Disclosure Letter sets forth more than $25,000 or extending for a list, as of term more than 180 days from the date of this Agreement, other than purchase orders entered into in the ordinary course of all Material Contracts. For purposes business prior to the date of this Agreement and purchase orders entered into in the ordinary course of business after the date of this Agreement and not in violation of this Agreement;
(Q) a Contract (including a sales order) involving the obligation of ICI to deliver products or services for payment of more than $25,000 or extending for a term more than 180 days from the date of this Agreement, “Material Contract” means all Contracts other than sales orders entered into in the ordinary course of business after the date of this Agreement and not in violation of this Agreement;
(R) a Contract with, or license or Permit granted by or from, any Governmental Entity;
(S) a Contract providing for the services of any dealer, distributor, sales representative, franchisee or similar representative involving the payment by ICI of more than $25,000;
(T) a Contract granting a Lien upon any of the properties or assets of ICI;
(U) a Contract for the sale of any of the properties or assets of ICI (other than sales of Inventory in the ordinary course of business) or the grant of any preferential rights to purchase any properties or assets of ICI or requiring the consent of any party to the transfer of any of the properties or assets of ICI;
(V) any other Contract that has an aggregate future liability to any Person (other than ICI) in excess of $25,000; or
(W) a Contract other than as described above to which the Company or any of its Subsidiaries ICI is a party or by which the Company, it or any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurancebound, reinsurance, in each case that is material to its business or retrocession treaties the use of any of the properties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) assets of Regulation S-K under the Securities Act;ICI.
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken Except as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Companydisclosed on Schedule 4.03(i)(ii);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and Contract identified on Schedule 4.03(i)(i) is in full force and effect, except where the failure to be valid, binding, or binding and in full force and effect would not constitute a Material Adverse Effectand is enforceable by ICI in accordance with its terms. Except as disclosed on Schedule 4.03(i)(ii), (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, ICI has performed all obligations required to be performed by it under each Material Contractthe Contracts to which it is a party or by which it is bound, except where such noncompliance and it has not taken any actions that are in conflict with, or that would not constitute a Material Adverse Effectresult in any violation of, or default (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event with or condition that constitutes, or, after without notice or lapse of time time, or both) under, will constituteany such Contract, a default on and, to the part knowledge of the Company Founders, no other party to any such Contract has taken any action that is in conflict with, or that would result in any of its Subsidiaries under any Material Contractviolation of, except where such or default would not constitute a Material Adverse Effect, and (iv) there are no events with or conditions that constitute, or, after without notice or lapse of time time, or both) under, will constitute a default on the part of any counterparty under such Material Contract. ICI has not, except as would disclosed on Schedule 4.03(i)(ii), received any written or oral notice of the intention of any party to terminate any Contract to which ICI is a party or by which ICI is bound. Except as disclosed on Schedule 4.03(i)(ii), to the knowledge of the Founders, the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the compliance with the terms hereof will not constitute require the consent of any party to any Contract identified on Schedule 4.01(i)(ii) or any material Contract with a Material Adverse Effectcustomer for the sale of any ICI product or service to avoid the invalidity of the transfer of such Contract, the termination thereof or a breach, violation or default thereunder. Complete and correct copies of all Contracts listed on Schedule 4.03(i)(i), together with all amendments thereto, have been made available to IHS.
Appears in 2 contracts
Samples: Formation Agreement (Galvin Michael Jeffrey), Formation Agreement (International Computex Inc)
Contracts. (a) Except (x) for this Agreement Agreement, (y) for a Company Plan or the Company Share Plans and each Contract filed (z) as an exhibit to the Filed SEC Documents, set forth in Section 4.16(a3.8(a) of the Company Disclosure Letter sets forth a listLetter, neither the Company nor any of its subsidiaries is party to or bound by, or has any property or asset bound by, any Contract, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under of the Securities ActAct or disclosed by the Company on a Current Report on Form 8-K, Annual Report on Form 10-K or Quarterly Report on Form 10-Q that has not been filed or incorporated by reference in the SEC Reports;
(ii) relate to contains any covenant that materially restricts the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness ability of the Company or any of its Subsidiaries having an outstanding subsidiaries, taken as a whole, to (A) engage in any business, (B) compete in any business or committed amount equal to with any Person, (C) operate in any geographic area or in excess of $10,000,000, (D) solicit or hire any employee or consultant other than pursuant to non-disclosure agreements entered into in the ordinary course of business;
(iii) is a joint venture, partnership, limited liability or other similar agreement or arrangement or Contract relating to the formation, creation, operation, management or control of any Indebtedness between partnership, joint venture, limited liability company or among any of the Company and any of its Subsidiariesother similar agreements or arrangements or Contracts;
(iv) are is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond, mortgage or other Contract (including any keepwell swap or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations hedge agreements) relating to indebtedness of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 subsidiaries (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions other than Contracts related to vault cash arrangements), in each case, in excess of $1,000,000;
(v) is a Contract related to vault cash arrangements with any financial institution;
(vi) is a settlement, conciliation or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of similar Contract with any Governmental Entity;
(vii) requires the Company or any of its Subsidiaries)subsidiaries, directly or indirectly, to make any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its wholly owned subsidiaries) in any such case which is in excess of $500,000;
(viviii) prohibit prohibits the payment of dividends or distributions in respect of the shares or share capital stock of the Company or any of its Subsidiariessubsidiaries, prohibit prohibits the pledging of the shares or share capital stock of the Company or any Subsidiary subsidiary of the Company or prohibit prohibits the issuance of any guarantee guarantees by the Company or by any Subsidiary subsidiary of the Company;
(viiix) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (xA) contains “most favored nation” pricing provisions which impose obligations on the Company or any of its Subsidiaries subsidiaries with any third party, or (B) grants exclusive rights, rights of first refusal, rights of first negotiation or offer or similar rights to any Person other than the Company or any of its subsidiaries;
(x) has resulted in payments by the Company and its subsidiaries to vendors of more than $2,000,000 in the aggregate for the 12 month period ending June 30, 2020 (other than this Agreement, Contracts subject to clause (iv) above, purchase orders for the purchase of inventory and/or equipment in the ordinary course of business or Leases);
(xi) has given rise to aggregate revenue (including termination fees) by the Company and its subsidiaries under such Contract(s) of more than $2,000,000 during fiscal year 2019;
(xii) with respect to any acquisition and divestiture pursuant to which the Company or any of its subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations, in each case, that would reasonably be expected to result in payments in excess of $2,000,000;
(xiii) involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or share capital or other equity interests for aggregate consideration under such Contract of at least $1,000,000 individually, or $2,000,000 in the aggregate;
(xiv) 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, on the other hand, except for any Company Plan and any Contracts entered into on arm’s-length terms in the ordinary course of business;
(xv) requires a consent to or otherwise contains a provision relating to a “change of control” or that would or could reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated herein, including the Acquisition;
(xvi) involves the payment of royalties to, or receipt of royalties from, any Person (other than the Company or any of its subsidiaries) of more than $1,000,000 in the aggregate pursuant to a license that is material to the Company and its subsidiaries taken as a whole; or
(xvii) is a Contract pursuant to which any third Person or (y) a third Person party grants to the Company or any of its Subsidiariessubsidiaries a license, in each case, for aggregate annual right or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed covenant not to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services xxx with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries Licensed Intellectual Property that is necessary for the conduct of the business of material to the Company and its Subsidiaries subsidiaries taken as currently conducted, a whole (other than managing agency agreements or managing general underwriting agreements.
(b1) As of the date of this Agreement, (i) each Material Contract is valid and binding on intercompany licenses between the Company or and any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effectsubsidiaries, (ii2) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, licenses for Open Source Software or (iii3) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition licenses for Software that constitutes, or, after notice or lapse of time or both, will constitute, a default is generally commercially available on standard terms for less than $300,000 (based on the part dollar value of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectexpenditures from fiscal year 2019)).
Appears in 2 contracts
Samples: Acquisition Agreement (NCR Corp), Acquisition Agreement (Cardtronics PLC)
Contracts. (a) Except for this Agreement Neither the Company nor any of its Subsidiaries is a party to, and each none of their respective properties or other assets is subject to, any Contract that is of a nature required to be filed as an exhibit to a report or filing under the Securities Act or the Exchange Act, other than any Contract that is filed as an exhibit to the Filed Company SEC Documents, .
(b) Section 4.16(a3.10(b) of the Company Disclosure Letter sets forth a list, correct and complete list as of the date of this Agreement, and the Company has, prior to the date hereof, made available to Parent correct and complete copies (including all amendments, modifications, extensions, renewals or guaranties) of:
(i) all Contracts of all Material Contracts. For purposes the Company or any of this Agreement, “Material Contract” means its Subsidiaries (A) involving payments by or to the Company or any of its Subsidiaries of more than $750,000 on an annual basis or (B) involving payments by or to the Company or any of its Subsidiaries of more than $100,000 on an annual basis and which may not be terminated by the Company without cause within one year without penalty;
(ii) all Contracts to which the Company or any of its Subsidiaries is a party party, or by which the Company, any of its Subsidiaries, Subsidiaries or any of their respective properties or assets its Affiliates is bound (other than Company Plans and insurancebound, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by that contain a covenant restricting the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness ability of the Company or any of its Subsidiaries having an outstanding (or committed amount equal to or in excess of $10,000,000which, other than any Indebtedness between or among any following the consummation of the Company and Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Corporation and its Subsidiaries) to compete in any business or with any person or in any geographic area or which prohibits the Company or any of its Subsidiaries from soliciting suppliers anywhere in the world;
(iii) all Contracts of the Company or any of its Subsidiaries with any Affiliate of the Company (other than any of its Subsidiaries) in which the amount involved exceeds $60,000 on an annual basis;
(iv) are any keepwell or similar agreement under (A) Contract to which the Company or any of its Subsidiaries has directly guaranteed is a party granting any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiarieslicense to Intellectual Property, in each case involving liabilities or obligations in excess of $10,000,000 and (B) other license (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(vreal estate) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee involving payments by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries of more than $750,000 on an annual basis;
(v) all confidentiality agreements (other than in the ordinary course of business), agreements by the Company not to acquire assets or securities of a third Person party or (y) agreements by a third Person party not to acquire assets or securities of the Company;
(vi) any Contract involving payments by or to the Company or any of its Subsidiaries, of more than $750,000 on an annual basis that requires consent of or notice to a third party in each casethe event of or with respect to the Merger, for aggregate annual including in order to avoid a breach or onetermination of or loss of benefit under any such Contract;
(vii) all joint venture, partnership or other similar agreements involving co-time fees in excess investment with a third party to which the Company or any of $2,000,000its Subsidiaries is a party;
(viii) any Contract with a Governmental Authority;
(ix) all material outsourcing Contracts;
(x) all Contracts with investment bankers, financial advisors, attorneys, accountants or other than commercially available “off-the-shelf” software licenses under which software is licensed advisors retained by the Company or any of its Subsidiaries involving payments by or to the Company or any of its SubsidiariesSubsidiaries of more than $750,000 on an annual basis;
(viiixi) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment all Contracts providing for the indemnification by the Company or any Subsidiary of its Subsidiaries of any person, except for any such Contract that (i) is not material to the Company or any of any material penalty, its Subsidiaries and (yii) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors was entered into in connection with the Transactionsordinary course of business;
(ixxii) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability all Contracts pursuant to consummate the Transactions or Parent’s ability to own and/or conduct the business which any indebtedness of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company is outstanding or any may be incurred and all guarantees of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention indebtedness of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
other person (xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to than the Company or any of its Subsidiaries) (except for such indebtedness or guarantees the aggregate principal amount of which does not exceed $750,000 on an annual basis and excluding trade payables arising in the ordinary course of business); orand
(xivxiii) provide for the outsourcing of any material function or part all Contracts listed on Section 3.21 of the business Company Disclosure Letter.
(i) None of the Company or any of its Subsidiaries (x) is, or has received written notice or has Knowledge that any other party to any of its Contracts is, in violation or breach of or default (with or without notice or lapse of time or both) under, or (y) has waived or failed to enforce any rights or benefits under any Contract to which it is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company a party or any of its Subsidiariesproperties or other assets is subject, to the extent such Person is a party thereto, as applicable, and, and (ii) to the Knowledge of the Company, each other party theretothere has occurred no event giving to others any right of termination, and is in full force and effect, except where the failure to be valid, binding, amendment or in full force and effect would not constitute a Material Adverse Effect, cancellation of (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event with or condition that constitutes, or, after without notice or lapse of time or both) any such Contract except for violations, will constitutebreaches, a default on defaults, waivers or failures to enforce rights or benefits covered by clauses (i) or (ii) above that, individually or in the part of the Company or any of its Subsidiaries under any Material Contractaggregate, except where such default have not had and would not constitute reasonably be expected to have a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Brookdale Senior Living Inc.), Merger Agreement (American Retirement Corp)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a3.11(a) of the Company Disclosure Letter Schedule sets forth a list, complete and accurate list as of the date of this Agreement, Agreement of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts the following contracts and agreements to which the Company or any of its Subsidiaries is a party or by and under which the Company, Company or any of its SubsidiariesSubsidiaries has any remaining rights or obligations (collectively, or any of their respective properties or assets is bound (other than the “Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:Material Contracts”):
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) any Intellectual Property Agreement, excluding generally commercially available, off-the-shelf software programs with annual license, maintenance, support and other fees of Regulation S-K under the Securities Actless than $5,000 individually;
(ii) relate any agreement (or group of related agreements) for the lease of personal property from or to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business third parties providing for remaining unpaid lease payments as of the Company and its Subsidiaries, taken as a wholedate hereof in excess of $50,000;
(iii) provide any agreement (or group of related agreements) for Indebtedness the purchase of raw materials, inventory, or finished goods or for the receipt of services under which the Company or any of its Subsidiaries expects to receive or pay more than the sum of $50,000;
(iv) any agreement for capital expenditures or the acquisition or construction of fixed assets;
(v) any agreement concerning the establishment or operation of a partnership, joint venture, limited liability company or other business organization;
(vi) any agreement to which a Governmental Entity is a party;
(vii) any agreement containing covenants of the Company or any of its Subsidiaries having an outstanding not to (or committed amount equal to otherwise restricting or in excess of $10,000,000, other than any Indebtedness between or among any limiting the ability of the Company and or any of its SubsidiariesSubsidiaries to) compete in any line of business or geographic or therapeutic area, including any covenant not to compete with respect to the manufacture, marketing, distribution or sale of any product or product line;
(ivviii) are any keepwell agreement (or similar group of related agreements) under which the Company or any of its Subsidiaries has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including capitalized lease obligations);
(ix) any agreement under which the Company or any of its Subsidiaries has directly guaranteed made advances or loans to any liabilities other person;
(x) any agreement for the disposition of any significant portion of the assets of the Company or obligations its Subsidiaries;
(xi) any agreement for the acquisition of another Person any business or under which another Person has directly guaranteed any liabilities corporation, partnership, joint venture, limited liability company, association or obligations other business organization or division thereof, except purchases of inventory, supplies and raw materials in the ordinary course of business;
(xii) any powers of attorney;
(xiii) any employment, severance, separation or consulting agreement with any executive officer or key employee of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (Subsidiaries other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets those that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee terminable by the Company or any the applicable Subsidiary of the Company;
(vii) restrict on no more than 60 days’ notice without material liability or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed financial obligation to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (yxiv) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on agreement between the Company or any of its Subsidiaries, on one hand, and any of the Company’s stockholders, directors, officers or employees, on the other; and
(xv) any other agreement (or group of related agreements) involving unpaid amounts of more than $50,000 or not entered into in the ordinary course of business.
(b) The Company has made available to the extent such Person Buyer a complete and accurate copy of each Company Material Contract, together with any amendments, exhibits and schedules thereto. Each Company Material Contract is a party thereto, as applicable, in full force and effect with respect to the Company or the applicable Subsidiary and, to the Knowledge of the Company’s Knowledge, with respect to each other party thereto, and is in full force a valid and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and binding obligation of each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, subject to the Bankruptcy and Equity Exception and except to the extent it has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither previously expired in accordance with its terms. None of the Company nor any of its Subsidiaries has received notice nor, to the Company’s Knowledge, any other party to any Company Material Contract is in material violation of or in material default under any Company Material Contract, nor does there exist any condition which, upon the existence of any event or condition that constitutes, or, after notice or lapse passage of time or the giving of notice or both, will constitute, would reasonably be expected to (i) cause such a material violation of or material default or (ii) give any third party (A) the right to declare a default on or exercise any remedy under any Company Material Contract, (B) the part right to accelerate the maturity or performance of any obligation of the Company or any of its Subsidiaries a Subsidiary under any Company Material Contract, except where such default would not constitute (C) the right to cancel, terminate or materially modify any Company Material Contract or (D) a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute right to a default on the part of penalty under any counterparty under such Company Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Centessa Pharmaceuticals LTD), Merger Agreement (Cornerstone Therapeutics Inc)
Contracts. (a) Except for this Agreement Agreement, except as filed with the SEC, and each Contract filed except as an exhibit to the Filed SEC Documents, set forth in Section 4.16(a) 4.15 of the Company Disclosure Letter sets forth a listLetter, as of the date of this Agreementhereof, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which neither the Company or nor any of its Subsidiaries is a party to or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
by any Contract that (i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
, (ii) relate is a Contract that expressly requires the Company or any of its Subsidiaries not to compete in any material manner or other Contract that (A) expressly limits in any material respect either the formation type of business in which the Company or management the Subsidiaries of the Company 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, (B) would expressly require the disposition of any joint venture, partnership, material assets or other similar agreement that is material to the line of business of the Company and or its Subsidiaries, taken Subsidiaries or any of their respective Affiliates as a whole;
result of the consummation of the transactions contemplated by this Agreement, (iiiC) provide for Indebtedness is a material Contract that expressly grants “most favored nation” status to the counterparty thereto or (D) expressly prohibits or limits, in any material respect, the right of the Company or any of its Subsidiaries having an outstanding to make, sell or committed amount equal to distribute any products or services or use, transfer, license, distribute or enforce any of their respective Intellectual Property rights or (iii) under which any Acquired Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money in excess of $10,000,000, other than 1,000,000 (except for such indebtedness between the Acquired Companies or guaranties by any Indebtedness between or among Acquired Company of indebtedness of any of the Company and any of its Subsidiaries;
Acquired Company) (iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract as described in excess of $10,000,000 (excludingthis Section 4.15, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiariesa “Material Contract”);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date . For purposes of this Agreement, (i) each “Contract” means any note, bond, mortgage, indenture, contract, agreement, lease or other instrument or obligation, together with all amendments thereto. Each Material Contract is valid and binding on the Company or any and each of its Subsidiaries, to the extent such Person is a Subsidiaries party thereto, as applicable, thereto and, to the Knowledge knowledge of the Company, each any other party thereto, and is in full force and effect, except where the failure in each case for such failures to be valid, binding, valid and binding or to be in full force and effect that individually or in the aggregate do not have, and would not constitute reasonably be expected to have, a Material Adverse Effect. Except individually or in the aggregate as does not have, and would not reasonably be expected to have, a Material Adverse Effect, (iix) there is no default under any Contract by the Company and each or any of its Subsidiaries, andSubsidiaries party thereto or, to the Knowledge knowledge of the Company, any other party thereto, and (y) no event has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither occurred that with the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, the giving of notice or both would constitute a default on the part of thereunder by the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, party thereto or, after notice or lapse to the knowledge of time or boththe Company, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectother party thereto.
Appears in 2 contracts
Samples: Merger Agreement (I Flow Corp /De/), Merger Agreement (Kimberly Clark Corp)
Contracts. (a) Except for this Agreement the transactions contemplated by Section 6.1(n), neither Intellicell nor any of its Subsidiaries is a party to (i) any lease, installment purchase agreement or other contract with respect to any real property used or proposed to be used in its operations, except, in each case, items reflected in Intellicell's March 31, 1999 financial statements; (ii) any contract or agreement for the purchase of any personal property, commodity, material, fixed asset or equipment in excess of $100,000 (iii) any mortgage, lease, contract or agreement creating an obligation of $100,000 or more; (iv) any contract or agreement involving payments in excess of $100,000 which by its terms does not terminate or is not terminable without penalty to it within one year after the date hereof; (v) any loan agreement, indenture, promissory note, conditional sales agreement or other similar type of arrangement; (vi) any material license agreement; or (vii) any contract which could be reasonably be expected to result in a material loss or obligation to Intellicell and its Subsidiaries. To the knowledge of Intellicell, each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a listforegoing mortgages, as of the date of this Agreementleases, of all Material Contracts. For purposes of this Agreementcontracts, “Material Contract” means all Contracts agreements and other arrangements to which the Company Intellicell or any of its Subsidiaries is a party or are valid and enforceable in accordance with their terms, except as such enforceability may be limited by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
bankruptcy laws and other similar laws affecting creditors' rights generally and (ii) relate to the formation general principles of equity, whether asserted in a proceeding in equity or management of any joint ventureat law. Intellicell, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge Intellicell's knowledge, all other parties to each of the Companyforegoing mortgages, each leases, contracts, agreements and other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has arrangements have performed all material obligations required to be performed by it under each Material Contractto date thereunder; neither Intellicell, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice nor, to Intellicell's knowledge, any such other party is in default or in arrears under the terms of any of the existence foregoing; and, to Intellicell's knowledge, no condition exists or event has occurred which, with the giving of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part under any of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectthem.
Appears in 2 contracts
Samples: Merger Agreement (Intellicell Corp), Agreement and Plan of Merger (Intellicell Corp)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a3.11(a) of the Company Disclosure Letter Schedule sets forth a list, as of the date of this Agreement, complete and accurate list of all Material Contracts. For purposes of this Agreementcontracts, “Material Contract” means all Contracts agreements, instruments and any other arrangements (written or oral) to which the Company or any of its Subsidiaries is a party (or by which is otherwise binding on the Company, Company or any of its Subsidiaries) as of the date of this Agreement with respect to any of the following (each such contract, agreement, instrument and other arrangement, collectively, the “Company Material Contracts”): (i) in which the Company and/or its Subsidiaries will spend or receive (or are expected to spend or receive) more than $150,000 during the current fiscal year or during any future fiscal year, (ii) where any non-competition or other provision prohibits or otherwise restricts, in any material way, the Company or any of its Subsidiaries or any of their respective properties or assets is bound businesses from freely engaging in any business activity anywhere in the world, (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangementsiii) that:
(i) are or would be required to be filed by the Company as a any “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities Act;
(iiSEC) relate with respect to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iiiiv) provide for Indebtedness any employment or consulting agreement with any executive officer or other employee of the Company or any of its Subsidiaries having or member of the Company Board earning an outstanding or committed amount equal to or annual salary from the Company and its Subsidiaries in excess of $10,000,000150,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) those that are any keepwell or similar agreement under which terminable by the Company or any of its Subsidiaries has directly guaranteed any liabilities on no more than 30 days’ notice without material liability or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person financial obligation to the Company or any of its Subsidiaries, in each case, for aggregate annual (v) any indebtedness owed by the Company or one-time fees in excess any of $2,000,000, its Subsidiaries (other than commercially available “off-the-shelf” software licenses under which software is licensed such indebtedness owed to the Company or any of its Subsidiaries;
(viii) involve ), any loan made to the Company or could reasonably be expected to involve aggregate payments or receipts by or to it and/or any of its Subsidiaries in excess of $10,000,000 in (other any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment such loan made by the Company or any Subsidiary of its Subsidiaries), (vi) any guarantee by the Company or any of its Subsidiaries of any material penaltyobligation owed by another person or entity (other than the Company or any of its Subsidiaries), (yvii) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business indemnification obligation of the Company or any of its Subsidiaries after the Effective Time;
of any obligation owed by another person or entity (x) contain provisions that prohibit other than the Company or any of its Affiliates from competing in Subsidiaries), (viii) the establishment or operation of a partnership, joint venture, alliance or other formalized participation arrangement, (ix) any material line power of business attorney or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) similar instrument granted by the Company or any of its Subsidiaries on less (other than ninety any customs power of attorney granted in the Ordinary Course of Business), (90x) days’ notice without payment any grant by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for of “most favored nation” pricing provisions with respect to the conduct purchase of any products, (xi) any hedging agreement or other financial agreement or arrangement designed to protect against fluctuations in commodities prices or exchange rates or (xii) any arrangement with respect to the business return or warranty of products of the Company outside of generally applicable policies. The Company has made available to the Buyer a complete and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsaccurate copy of each of the Company Material Contracts.
(b) As of the date of this Agreement, (i) each Each Company Material Contract is valid in full force and binding on effect against the Company or and any of its Subsidiaries, to the extent such Person is a Subsidiaries party thereto, as applicable, thereto and, to the Knowledge of the Company’s Knowledge, each other party thereto, and is in full force and effectall material respects, except where to the failure to be valid, binding, extent it has previously expired in accordance with its terms. The Company or in full force and effect would not constitute a Material Adverse Effect, (ii) Subsidiary of the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, (as applicable) has performed all of its material obligations required to be performed by it (except those that have not yet become due) under, and none of the Company nor any of its Subsidiaries is in material violation of or in material default under each (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a material violation of or material default under) any Company Material Contract. To the Company’s Knowledge, each other party to any Company Material Contract has performed all of its material obligations (except where those that have not yet become due) under, and none of such noncompliance other parties is in material violation of or in material default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would not constitute cause such a material violation of or material default under) any Company Material Adverse EffectContract.
(c) Except as disclosed in the Specified Company SEC Report Disclosure, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of entered into any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part transaction with any Affiliate of the Company or any of its Subsidiaries under or any Material Contract, except where such default transaction that would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse be subject to proxy statement disclosure pursuant to Item 404 of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.Regulation S-K.
Appears in 2 contracts
Samples: Merger Agreement (Biosphere Medical Inc), Merger Agreement (Merit Medical Systems Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC DocumentsAgreement, Section 4.16(a5.10(a) of the Company STFC Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes of this AgreementContracts (except for any STFC Insurance Contract, “Material STFC Reinsurance Contract” means all Contracts , XXX Benefit Plan or STFC Benefit Plan) to which the Company STFC or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, as applicable, is a party to or any of their respective properties or assets is bound that meets the following criteria (other than Company Plans and insuranceeach, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:a “STFC Material Contract”):
(i) are or that would be required to be filed by the Company STFC as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate (A) containing covenants that purport to materially restrict the formation ability of STFC or management any of its Subsidiaries or, at or after the Closing, LMHC or any of its Subsidiaries from (1) engaging in any business or competing in any business with any Person or in any geographic area, (2) operating its business in any manner or location, in each case, other than with respect to soliciting or hiring employees or (3) acquiring assets or securities of another Person (whether through a standstill or otherwise), (B) provides for the granting of “most favored nation” pricing or exclusive rights to any Person or (C) would require the disposition of any joint venture, partnership, material assets or other similar agreement that is material to the line of business of STFC or its Subsidiaries or acquisition of any material assets or line of business of any Person or, at or after the Company and Closing, LMHC or any of its Subsidiaries, taken as a whole;
(iii) provide with respect to any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to STFC or any of its Subsidiaries, except for any such Contract solely between STFC and its wholly-owned Subsidiaries or solely among STFC’s wholly-owned Subsidiaries;
(iv) that evidences the creation, incurrence, assumption or guarantee of Indebtedness of the Company STFC or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,0007,500,000, other than any Indebtedness between or among any of the Company STFC and any of its wholly-owned Subsidiaries;
(ivv) are any keepwell limiting or similar agreement under which prohibiting (or purporting to limit or prohibit) the Company declaration of or payment of dividends or distributions to STFC Shareholders or in respect of the capital stock or other equity securities of any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company STFC or any of its Subsidiaries, in each case involving liabilities or obligations in excess prohibiting the pledging of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests securities of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company STFC or any of its SubsidiariesSubsidiaries or prohibiting the issuance of guarantees by STFC or any of its Subsidiaries (other than pursuant to applicable Law);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company pursuant to which STFC or any of its SubsidiariesSubsidiaries (A) licenses any material Intellectual Property from any non-Affiliated Person (other than licenses for open source or off-the-shelf software pursuant to “click-wrap” or “shrink-wrap” agreements), prohibit the pledging of the shares (B) licenses any material Intellectual Property to any non-Affiliated Person or capital stock of the Company (C) is limited in its own use or any Subsidiary of the Company or prohibit the issuance enforcement of any guarantee Intellectual Property owned by the Company STFC or any Subsidiary of the Companyits Subsidiaries;
(vii) restrict any Contract the principal purpose of which is to indemnify any current or grant rights former STFC Shareholder in respect of any potential Tax Liabilities;
(viii) any collective bargaining agreement or any other labor-related agreement or arrangement with any labor union, trade union, labor organization or other employee representative body;
(ix) relating to use an acquisition, disposition or practice rights under divestiture of any business or any assets that constitute a business or business unit or division of another Person (whether by merger, sale of stock, sale of assets or otherwise) and which contains representations, covenants, material Intellectual Propertyindemnities or other material obligations (including material indemnification, including “earn-out” or other contingent obligations) that are still in effect (other than this Agreement and confidentiality agreements providing for the creation in connection with any potential acquisition, divestiture, merger or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by similar transaction);
(x) the Company evidencing derivatives, financial or commodity hedging or similar trading activities, including any interest rate or currency swaps or similar Contract to which STFC or any of its Subsidiaries is a party;
(xi) containing a put, call, right of first refusal, right of first offer or similar right or obligation pursuant to a third Person or (y) a third Person to the Company which STFC or any of its SubsidiariesSubsidiaries would be required to purchase or sell, in each caseas applicable, for aggregate annual all or one-time fees in excess any substantial part of $2,000,000any material assets, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company rights or properties of STFC or any of its Subsidiaries;
(viiixii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess that restricts the ability of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company STFC or any of its Subsidiaries after the Effective Time;
to declare, set aside or pay any dividends on, or make any other distributions (xwhether in cash, stock, property or any combination thereof) contain provisions that prohibit the Company or in respect of, any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the worldcapital stock, other than Contracts that can be terminated (including such restrictive provisions) by the Company equity or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreementsvoting interests;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contractsvoting agreement, voting trust, shareholder agreement or investment management services to the Company or any of its Subsidiaries; orregistration rights agreement, other than in connection with STFC Investment Assets;
(xiv) provide for the outsourcing containing a mortgage, pledge, security agreement, deed of trust or similar Lien (other than any Permitted Lien) on any property or assets material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company to STFC and its Subsidiaries (taken as currently conducted, other than managing agency agreements or managing general underwriting agreements.a whole);
(bxv) As requiring any capital commitment or capital expenditures (including any series of the date of this Agreement, (irelated expenditures) each Material Contract is valid and binding on the Company or pursuant to which STFC or any of its Subsidiaries, individually or collectively, have any obligations (including with respect to the extent such Person purchase or sale of materials, supplies, goods, equipment or other assets), in each case, in excess of $2,000,000 per year or in the next twelve (12) months;
(xvi) that are STFC Leases;
(xvii) that provides for any guarantee of third-party obligations, other than any guarantees by STFC of its Subsidiaries’ obligations or guarantees by STFC’s Subsidiaries of STFC’s obligations;
(xviii) with any Governmental Authority, other than any non-disclosure or similar Contract or Policy entered into in the ordinary course of business;
(xix) providing for any settlement of any Action (other than ordinary course claims made under XXX Insurance Contracts within applicable policy limits) that (A) imposes material future limitations on the operation of STFC and its Subsidiaries or (B) involves (x) payments after December 31, 2020, in excess of $5,000,000 or (y) monitoring or reporting obligations to any other Person; or
(xx) that provides for the “sale” (as defined in the California Consumer Privacy Act) of Personal Data Processed by STFC or any of its Subsidiaries.
(b) Assuming the due authorization, execution and delivery thereof by the other party or parties thereto, (i) each STFC Material Contract is a valid and binding obligation of STFC and any of its Subsidiaries party thereto, as applicable, thereto and, to the Knowledge of the CompanySTFC, each other party or parties thereto, in accordance with its terms and is in full force and effect, except where subject to the failure to be validBankruptcy and Equity Exception, binding(ii) as of the date hereof, or each STFC Material Contract is in full force and effect would not constitute a Material Adverse Effecteffect, (iiiii) the Company STFC and each any applicable Subsidiary of its Subsidiaries, STFC is not and, to the Knowledge of STFC, as of the Companydate hereof, any no other party theretothereto is in default in the performance, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence observation or fulfillment of any event obligation, covenant or condition that constitutescontained in each STFC Material Contract and (iv) no event has occurred that, orwith or without notice, after notice or lapse of time or both, will constitute, would constitute a default on the part of the Company by STFC or any of its Subsidiaries Subsidiaries, or to the Knowledge of STFC, as of the date hereof, by any other party thereto, under any STFC Material Contract, except where such default would not constitute a Material Adverse Effectexcept, with respect to each of the foregoing clauses (i), (ii), (iii) and (iv) there are no events where such failures to be valid and binding and in full force and effect and defaults would not, individually or conditions that constitutein the aggregate, or, after notice or lapse of time or both, will constitute have a default on the part of any counterparty under such Material Contract, except as would not constitute a STFC Material Adverse Effect. STFC has made available to LMHC a copy of each STFC Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (State Auto Financial CORP), Merger Agreement
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Contracts disclosed in the Filed Company SEC Documents, Section 4.16(a2.13(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which and the Company or any of its Subsidiaries is a party or by which the Companyhas made available to Parent true and complete copies, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatof:
(i) are or each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate each Contract to which the Company or any Company Subsidiary is a party that (A) restricts the ability of the Company or any Company Subsidiary to compete in any business or with any Person in any geographical area, (B) provides for “exclusivity” or any similar requirement in favor of any third party, (C) contains a “take-or-pay” arrangement or (D) any standstill or similar agreement pursuant to which the Company or any Company Subsidiaries has agreed not to acquire any assets or securities of another Person;
(iii) each Contract under which the Company or any Company Subsidiary licenses, grants or is granted rights in or to Intellectual Property from or to any third party or that relates to the formation or management Company Systems (in each case, other than generally commercially available, off-the-shelf software programs and other than non-exclusive, ordinary course Contracts licensing Intellectual Property that do not require payments in excess of any joint venture, partnership, or other similar agreement $5,000,000 per year) except for such Contracts that is are not material to the business of Company and the Company and its Subsidiaries, taken as a whole;
(iiiiv) provide each Contract to which the Company or any Company Subsidiary is a party that provides for Indebtedness annual payments or receipts in excess of $20,000,000;
(v) each Contract to which the Company or any Company Subsidiary is a party relating to indebtedness for borrowed money or any financial guaranty, in each case with respect to a principal amount in excess of $10,000,000;
(vi) each Contract to which the Company or any Company Subsidiary is a party that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of assets in the ordinary course of business) or businesses (whether by merger, sale of stock, sale of assets or otherwise) with a total consideration of more than $10,000,000 and that (A) has not yet been consummated or (B) has outstanding any material purchase price adjustment, “earn-out,” indemnification, payment or similar obligations on the part of the Company or any of its Subsidiaries having Company Subsidiary;
(vii) each Contract to which the Company or any Company Subsidiary is a party that obligates the Company or any Company Subsidiary to make any capital commitment, loan or expenditure in an outstanding or committed amount equal to or in excess of $10,000,000;
(viii) each Contract to which the Company or any Company Subsidiary is a party, other than with respect to any Indebtedness between or among any of entity that is wholly owned by the Company and or any wholly owned Company Subsidiary, that relates to the formation, creation, operation, management or control of its Subsidiariesany legal partnership, limited liability or any joint venture entity or similar arrangement pursuant to which the Company has an obligation (contingent or otherwise) to make a material investment in or material extension of credit to any Person;
(ivix) are each Contract with any keepwell Governmental Entity, in each case that would reasonably be expected to result in future payments to such Governmental Entity in excess of $2,500,000 (other than for or in respect of any Tax);
(x) each settlement, conciliation, or similar agreement under Contract with any Governmental Entity pursuant to which the Company or any of its Subsidiaries subsidiaries has directly guaranteed continuing obligations or involving the payment of more than $5,000,000;
(xi) each collective bargaining or other Contract with any liabilities labor union, works council, or obligations other labor organization that is required to be set forth on Section 2.10 of another Person the Company Disclosure Letter; and
(xii) each Contract with or under which another Person has directly guaranteed any liabilities or obligations of binding upon the Company or any of its Subsidiariesthe Company Subsidiaries or any of their respective properties or assets that is with any directors, in each case involving liabilities officers or obligations in excess five percent (5%) stockholders of $10,000,000 (the Company, other than any contracts under which employment, indemnification, stock option or similar contracts. Each such Contract described in clauses (i) through (xii) above is referred to herein as a “Specified Contract.”
(b) Each of the Specified Contracts is valid, binding and enforceable (except as such enforceability may be limited by the Bankruptcy, Equity and Indemnity Exception) on the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party theretoSubsidiary, as applicablethe case may be, and, to the Knowledge knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure for such failures to be valid, binding, binding or enforceable or to be in full force and effect as would not constitute reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, (ii) . There is no default under any Specified Contract by the Company and each of its Subsidiaries, andor any Company Subsidiary or, to the Knowledge knowledge of the Company, any other party thereto, and no event has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither occurred that with the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, the giving of notice or both would constitute a default on the part of thereunder by the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, Company Subsidiary or, after notice or lapse to the knowledge of time or boththe Company, will constitute a default on the part of any counterparty under such Material Contractother party thereto, in each case except as would not constitute reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Avantor, Inc.), Merger Agreement (VWR Corp)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(aPart 2.15(a) of the Company Disclosure Letter Schedule sets forth a listforth, as of the date of this Agreement, an accurate and complete list of all Material each Contract (or group of related Contracts. For purposes of this Agreement, “Material Contract” means all Contracts ) to which the Company or any of its Subsidiaries the Acquired Companies is a party or party, by which the Company, any of its Subsidiariesthe Acquired Companies is bound or pursuant to which any of the Acquired Companies is an obligor or a beneficiary, or any which will be assigned as a part of their respective properties or assets is bound (other than Company Plans and insurancethe Acquired Limited Partnership Assets, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatwhich:
(i) are involves performance of services or would be required to be filed by delivery of goods or materials, the Company as performance of which extends over a “material contract” pursuant to Item 601(b)(10) period of Regulation S-K under the Securities Actmore than one year or that otherwise involves an amount or value in excess of $100,000;
(ii) relate to the formation or management is for capital expenditures in excess of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole$100,000;
(iii) provide for Indebtedness of the Company is a mortgage, indenture, guarantee, loan or any of its Subsidiaries having an outstanding credit agreement, security agreement or committed amount equal other Contract relating to or in excess of $10,000,000Indebtedness, other than any Indebtedness between or among any accounts receivables and payables in the ordinary course of the Company and any of its Subsidiariesbusiness;
(iv) are is a lease or sublease of any keepwell real or similar agreement under which personal property, or that otherwise affects the Company ownership of, leasing of, title to or use of, any real or personal property (except personal property leases and conditional sales agreements having a value per item or aggregate payments of its Subsidiaries has directly guaranteed any liabilities or obligations less than $100,000 and a term of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other less than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Companyone year);
(v) have been entered into since January 1is for the employment of, 2017or receipt of any services from, and involve any manager, director, officer or Employee of any of the acquisition from another Acquired Companies or any other Person or disposition to another Person of capital stock on a full-time, part-time, consulting or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract basis providing annual compensation in excess of $10,000,000 100,000;
(excludingvi) provides for severance, termination or similar pay to any of the Acquired Companies’ current or former managers, directors, officers, Employees or consultants or other independent contractors;
(vii) provides for a loan or advance of any amount to any manager, director, officer or other Employee of any of the avoidance Acquired Companies, other than advances for travel and other appropriate business expenses in the ordinary course of doubtbusiness;
(viii) licenses any Person to manufacture or reproduce any of the Acquired Companies’ products, acquisitions services or dispositions technology or any Contract to sell or distribute any of investments made the Acquired Companies’ products, services or technology;
(ix) is a joint venture, partnership or other Contract involving any joint conduct or sharing of any business, venture or enterprise, or a sharing of profits or losses or pursuant to which any of the Investment GuidelinesAcquired Companies has any ownership interest in any other Person or business enterprise;
(x) contains any covenant limiting the right of any of the Acquired Companies to engage in any line of business or to compete (geographically or otherwise) with any Person, granting any exclusive rights to make, sell or of supplies, distribute the Acquired Companies’ products, propertiesgranting any “most favored nations” or similar rights or otherwise prohibiting or limiting the right of any of the Acquired Companies to make, sell or distribute any products or services;
(xi) involves payments based, in whole or in part, on profits, revenues, fee income or other assets financial performance measures of any of the Acquired Companies;
(xii) is a power of attorney granted by or on behalf of any of the Acquired Companies;
(xiii) is a written warranty, guaranty or other similar undertaking with respect to contractual performance extended by any of the Acquired Companies other than in the ordinary course of business;
(xiv) is a settlement agreement with respect to any pending or threatened Legal Proceeding entered into within three years prior to the date of this Agreement, other than (A) releases immaterial in nature or amount entered into with former Employees or independent contractors of any of the Acquired Companies in the ordinary course of business in connection with routine cessation of such Employee’s or independent contractor’s employment with any of supplies, products, properties, the Acquired Companies or (B) settlement agreements for cash only (which has been paid) and does not exceed $50,000 as to such settlement;
(xv) was entered into other assets that are obsolete, worn out, surplus, or no longer used or useful than in the conduct ordinary course of business and that involves an amount or value in excess of $100,000;
(xvi) is an agreement or contract with the Company Seller or any of its Subsidiaries)Affiliates;
(vixvii) prohibit the payment of dividends is an agreement between two or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Companymore Acquired Companies;
(viixviii) restrict contains or grant rights provides for an express undertaking by the Acquired Companies to use be responsible for consequential or practice rights liquidated Damages; or
(xix) is otherwise material to the business, properties or assets of the Acquired Companies and under material Intellectual Propertywhich the consequences of a default or termination could have a Material Adverse Effect on any of the Acquired Companies or the Acquired Limited Partnership Assets. Notwithstanding the foregoing or any other provision contained in this Agreement, including agreements providing the Material Contracts shall not include the Corn Delivery Agreements entered into by and between Seller and its members for purposes of supplying corn for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary operation of the Company ethanol production business of any material penaltyAgri-Energy, L.P. (y) any Company Lease, the “Corn Delivery Agreements”). The Corn Delivery Agreements are neither an asset or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with property of the Transactions;
(ix) would reasonably be expected to, individually or Acquired Companies nor included in the aggregate, prevent, materially delay, Acquired Limited Partnership Assets and shall not be assigned or materially impede the Company’s ability otherwise conveyed to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company Purchaser or any of its Affiliates from competing in either directly or indirectly, and as such, any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territoryrepresentation, marketwarranty, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services covenant relating to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that Corn Delivery Agreements is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsexpressly disclaimed.
(b) As The Acquired Companies have made available to Purchaser an accurate and complete copy (in the case of each written Contract) or an accurate and complete written summary (in the case of each oral Contract) of each Contract listed or required to be listed on Part 2.15(a) of the date of this AgreementCompany Disclosure Schedule (collectively, the “Material Contracts”). With respect to each such Material Contract:
(i) each Material the Contract is valid and binding on the Company or any of its Subsidiarieslegal, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or enforceable and in full force and effect would not constitute a Material Adverse Effectagainst the Acquired Companies that are party thereto or, to the Acquired Companies’ Knowledge, the other party or parties thereto, except to the extent it has previously expired in accordance with its terms;
(ii) the Company and each of its Subsidiaries, Acquired Companies have and, to the Knowledge of Acquired Companies’ Knowledge, the Company, any other party thereto, has parties to the Contract have performed all of their respective obligations required to be performed by it under each Material the Contract, except where such noncompliance would not constitute a Material Adverse Effect, ;
(iii) neither The Acquired Companies are not, nor to the Company nor Acquired Companies’ Knowledge, is any of its Subsidiaries other party to the Contract in breach or default under the Contract and no event has received notice of the existence of any event occurred or condition circumstance exists that constitutes(with or without notice, or, after notice or lapse of time or both) would constitute a breach or default by any of the Acquired Companies or, will constituteto the Acquired Companies’ Knowledge, a default by any such other party or permit termination, cancellation, acceleration, suspension or modification of any obligation or loss of any benefit under, result in any payment becoming due under, result in the imposition of any Encumbrances on the part any of the Company Units or any of its Subsidiaries under the properties or assets of the Acquired Companies under, or otherwise give rise to any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default right on the part of any counterparty under such Material Person to exercise any remedy or obtain any relief under, the Contract, except nor have any of the Acquired Companies given or received notice or other communication alleging the same; and
(iv) the Contract is not under negotiation (nor has written demand for any renegotiation been made), no party has repudiated any portion of the Contract and the Acquired Companies have no Knowledge that any party to the Contract does not intend to renew it at the end of its current term.
(c) To the Acquired Companies’ Knowledge, no manager, director, agent, Employee or consultant or other independent contractor of any of the Acquired Companies is a party to, or is otherwise bound by, any Contract, including any confidentiality, noncompetition or proprietary rights agreement, with any other Person that in any way adversely affects or will affect (i) the performance of his or her duties for the Acquired Companies, (ii) his or her ability to assign to the Acquired Companies rights to any invention, improvement, discovery or information relating to the business of any of the Acquired Companies or (iii) the ability of any of the Acquired Companies to conduct its business as would not constitute a Material Adverse Effectcurrently conducted or as proposed to be conducted.
Appears in 2 contracts
Samples: Acquisition Agreement (Gevo, Inc.), Acquisition Agreement (Gevo, Inc.)
Contracts. (a) Except for (A) this Agreement Agreement, (B) each Company Plan (C) each Foreign Plan and (D) each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a3.16(a) of the Company Disclosure Letter sets forth a list, list of all Material Contracts as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, Subsidiaries or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangementsPlans) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, partnership or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries, or pursuant to which the Company or any of its Subsidiaries guarantees Indebtedness of another Person, having an outstanding or committed amount equal to or in excess of $10,000,0005 million, other than any Indebtedness between or among any of the Company and any of its SubsidiariesSubsidiaries and other than any letters of credit;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 20172013, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of assets of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 5 million (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, properties or other assets in the ordinary course of business or of supplies, products, properties, properties or other assets that are obsolete, worn out, surplus, surplus or no longer used or useful in the conduct of business of the Company or any of its SubsidiariesSubsidiaries under which the Company or its Subsidiaries have material surviving obligations);
(viv) contain provisions that (A)(1) prohibit the payment of dividends or distributions in respect of the shares share capital or capital stock of the Company or any of its wholly owned Subsidiaries, (2) prohibit the pledging of the shares share capital or capital stock of the Company or any wholly owned Subsidiary of the Company or (3) prohibit the issuance of any guarantee by the Company or any wholly owned Subsidiary of the Company;
Company or (viiB) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development ability of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person incur or guarantee Indebtedness;
(yvi) a third Person to contain provisions that (A) prohibit the Company or any of its Subsidiaries, in each caseor which, for aggregate annual or one-time fees in excess of $2,000,000following the Closing, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company prohibit Parent or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business business, or (B) grant a right of exclusivity to any Person that which prevents the Company or any Affiliate Subsidiary of the Company Company, or, following the Closing, Parent or any of its Subsidiaries, from entering any material territory, market, market or field or freely engaging in business anywhere in the world, in each case, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xivii) involve pursuant to which the retention of Company or any independent contractor, consultantSubsidiary (A) is granted or obtains any right to use any material Intellectual Property (other than standard form Contracts granting rights to use readily available shrink wrap or click wrap software), or agency for the provision of services (B) has granted any other Person a right to use any Intellectual Property owned by the Company with annualized fees in excess of $300,000or any Subsidiary;
(xiiviii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect pursuant to any Insurance Contracts, or investment management services to which the Company or any of its Subsidiaries; orSubsidiaries (A) is granted or obtains any right to use any material Intellectual Property (other than Contracts granting rights to use commercially available software having a replacement cost and annual license of less than $250,000 (e.g., database, enterprise resource planning, business management planning, desktop and similar software) and commercially available, off-the-shelf software (including “shrink-wrap” or “click-wrap” software)), and (B) is restricted in its right to assert, use or register any Intellectual Property owned by the Company or any of its Subsidiaries that is material to the conduct of the businesses of the Company and its Subsidiaries as currently conducted (excluding licenses granted to third parties in the ordinary course of business);
(xivix) provide for involve or could reasonably be expected to involve aggregate payments or receipts by or to the outsourcing Company and/or its Subsidiaries in excess of $1 million in any twelve (12) month period, other than (A) Contracts terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (B) insurance policies and reinsurance and retrocession agreements and treaties entered into in the ordinary course of business and (C) Contracts relating to investments made pursuant to the Investment Guidelines;
(x) that outsources any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conductedSubsidiaries, other than managing general agency agreements or managing general underwriting agreements; or
(xi) would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time.
(b) As (i) The Company has previously made available to Parent true and complete copies of the date of this Agreementeach Material Contract, (iii) each Material Contract is valid and binding on the Company or and/or any of its Subsidiaries, Subsidiaries to the extent such Person is a party thereto, as applicable, and, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, binding or in full force and effect has not had or would not constitute reasonably be expected to have a Material Adverse Effect, (iiiii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance has not had or would not constitute reasonably be expected to have a Material Adverse Effect, (iiiiv) neither the Company nor any of its Subsidiaries has received notice written notice, or, to the Knowledge of the Company, verbal notice, of the existence of any event or condition that which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default has not had or would not constitute reasonably be expected to have a Material Adverse Effect, Effect and (ivv) there are no events or conditions that which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as has not had or would not constitute reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Hartford Financial Services Group Inc/De), Merger Agreement (Navigators Group Inc)
Contracts. (a) Except for this Agreement and each Contract except for Contracts filed or furnished as an exhibit to exhibits to, or incorporated by reference into, the Filed Publicly Available Company SEC Documents, Section 4.16(a3.15(a) of the Company Disclosure Letter sets forth a list, as true and complete list of each of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all following Contracts to which the Company or any of its Subsidiaries is a party or by which (and any amendments, supplements and modifications thereto) as of the Company, any date of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatthis Agreement:
(i) are or any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate any Contract (A) that purports to limit in any material respect either the type or scope of business in which the Company or any of the Subsidiaries of the Company (or, after the Effective Time, Parent or any of its Subsidiaries) may engage or the geographic area in which any of them may so engage in any business (including through provisions regarding non-competition or exclusivity), (B) in which an Acquired Company grants “most favored nation” or similar status to any of its customers that, following the Effective Time, would by its terms require Parent or its Subsidiaries (other than the Acquired Companies) to apply such status to their own customers, (C) that is a “take-or-pay” Contract requiring an Acquired Company to purchase a minimum amount of any product or service from the counterparty to such Contract or pay a financial penalty or (D) that provides for the Acquired Company to dispose of any material assets or line of business of the Acquired Companies (other than to the formation extent excluded in the exception set forth in clause (x) below and other than inventory in the ordinary course or management business);
(iii) any (A) indenture, loan or credit agreement, loan note, mortgage agreement, letter of credit or other Contract representing, or any guarantee of, indebtedness for borrowed money of an Acquired Company (other than indebtedness for borrowed money (i) in the form of trade credit or similar loans or advances entered into in the ordinary course of business or (ii) with an aggregate outstanding principal amount not in excess of $5,000,000 in the aggregate) (except for such indebtedness between Acquired Companies or guarantees by any Acquired Company of indebtedness of any Acquired Company), (B) Contract in respect of swaps, xxxxxx or similar arrangements (other than any Contracts in respect of swaps, xxxxxx or similar arrangements entered into pursuant to International Swaps and Derivatives Association Master Agreements in the ordinary course of business consistent with the Company’s hedging policy made available to Parent), or (C) factoring agreement or other Contract providing for the factoring of Acquired Company receivables (1) which, in either case, does not provide for non-recourse treatment of the receivables factored or (2) pursuant to which the Acquired Companies have sold in fiscal year 2014 (or have or expect to sell in fiscal year 2015) Acquired Company receivables for amounts in excess of $5,000,000;
(iv) any Contract establishing any material (A) joint venture, venture or partnership, or other similar agreement (B) strategic alliance with a third party for the joint development or marketing of products;
(v) any customer or supplier Contract (including any customer Contract that is a distribution Contract) under which the Company or any of its Subsidiaries (A) made or received payments of more than $10,000,000 during the fiscal year ended December 31, 2014 or (B) reasonably expects to make or receive payments of more than $10,000,000 for the fiscal year ending December 31, 2015 and, in the case of either of clause (A) or clause (B), is not terminable upon notice of ninety (90) days or less without penalty;
(vi) any Contract that involves the licensing to a third party of Company Intellectual Property or the licensing by the Company of Intellectual Property owned by a third party, in each case, that is material to the business of the Company or any of its Subsidiaries, taken as a whole, and in each case, other than such licenses that are granted pursuant to commercial relationships between the Company and its customers, vendors or suppliers in the ordinary course of business or any such licenses for software that is generally commercially available;
(vii) any Contract containing any standstill or similar restriction pursuant to which the Company or its Subsidiaries has agreed not to acquire securities of another Person or to refrain from engaging in or proposing to engage in business combination transactions with another Person;
(viii) any employment Contract that requires aggregate payments with respect to annual salary and target bonus in excess of $200,000 on an annual basis or is not terminable without cause by the Company or any of its Subsidiaries by notice of not more than sixty (60) days or without any termination payment or penalty, or any severance, retention, change in control or similar Contract;
(ix) any collective bargaining agreement or other Contract with any labor organization, union or association or works council;
(x) any Contract that grants any rights of first refusal, rights of first negotiation or other similar pre-emptive rights to any person (other than an Acquired Company) with respect to any asset that is material to the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or , excluding any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or Contract with a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock customer of the Company or any Subsidiary of the Company which, by its terms, permits the customer under such Contract, in connection with the termination of such Contract, to purchase assets of the Company or prohibit the issuance of any guarantee its Subsidiaries under such Contract that are exclusively used by the Company or any Subsidiary of the Companyand its Subsidiaries to manufacture products for such customer;
(viixi) restrict any Contract entered into in connection with the acquisition or grant rights to use disposition by the Acquired Companies of any business or practice rights under material Intellectual Propertybusiness unit (by merger, including agreements providing for sale of stock, sale of assets or otherwise) (other than acquisitions and dispositions of assets in the creation ordinary course of business) (A) that contains “earnout” or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by other contingent payment obligations (xother than any such obligations (1) the Company or any of its Subsidiaries to a third Person that are indemnification obligations or (y2) a third Person to the Company or any that provide for potential payments of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of less than $2,000,000, other than commercially available “off-the-shelf” software licenses ) or (B) under which software is licensed to the any Acquired Company or has any of its Subsidiaries;
(viii) involve or could continuing indemnification obligations that would reasonably be expected to involve aggregate payments or receipts by or give rise to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month perioda liability that is material to the Acquired Companies, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactionstaken as a whole;
(ixxii) would reasonably be expected toany (A) Government Contract; (B) settlement or similar Contract entered into since January 1, individually or 2013 that is, in the aggregatecase of either of clause (A) or clause (B), preventmaterial to the Acquired Companies, materially delay, taken as a whole or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the (C) material Contract entered into with Motors Liquidation Company or any of its Subsidiaries after the Effective Time;
(xf/k/a General Motors Corp.) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company (or any Affiliate seller or buyer of any of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary businesses of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services foregoing pursuant to the reorganization of Motors Liquidation Company f/k/a General Motors Corp.) in connection with annualized fees in excess the reorganization of $300,000;
Motors Liquidation Company (xii) constitute collective bargaining agreementsf/k/a General Motors Corp.);
(xiii) involve any material Contract entered into in connection with the provision consummation of material thirdthe Spin-party administration or other policy or claims administration services with respect to any Insurance ContractsOff and the related transactions conducted on December 31, or investment management services to the Company or any of its Subsidiaries; or2014;
(xiv) provide for the outsourcing of any material function Contract purporting to indemnify or part of the business hold harmless any director or officer of the Company (other than the Company Constituent Documents or organizational documents of the Company’s Subsidiaries); and
(xv) any Contract that is between the Company or one of its Subsidiaries on the one hand and any Person beneficially owning five percent (5%) or more of the outstanding Shares on the other hand. Each such Contract required to be listed in Section 3.15(a) or Section 3.17(b) of the Company Disclosure Letter (or that is necessary would have been required to be listed in Section 3.15(a) but for the conduct fact that it is furnished or filed with a Publicly Available Company SEC Document), a “Material Contract”.
(b) True and complete copies of the business all Material Contracts of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date have been made available to Parent. For purposes of this Agreement, (i) each “Contract” means any note, bond, mortgage, indenture, contract, arrangement, undertaking, agreement, lease or other instrument or obligation, together with all amendments thereto, but excludes any Company Plan and any purchase order entered into the ordinary course of business. Each Material Contract is a legally valid and binding on obligation of each of the Company or any of its Subsidiaries, to the extent such Person is a Acquired Companies that are party thereto, as applicable, thereto and, to the Knowledge knowledge of the Company, each any other party thereto, and is in full force and effect, except where the failure in each case for such failures to be valid, binding, a legally valid and binding obligation or to be in full force and effect that, individually or in the aggregate, would not constitute reasonably be expected to have a Material Adverse Effect. Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect (i) there is no default under any Material Contract by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto and (ii) no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company and each or any of its Subsidiaries, andSubsidiaries party thereto or, to the Knowledge knowledge of the Company, any other party thereto.
(c) As of the date of this Agreement, except as, individually or in the aggregate, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance not had and would not constitute reasonably be expected to have a Material Adverse Effect: (x) to the Company’s knowledge, neither the Company nor any of its Subsidiaries nor any of their respective personnel is subject to an ongoing administrative, civil, or criminal investigation, indictment or audit by any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract; (iiiy) to the Company’s knowledge, neither the Company nor any of its Subsidiaries has since January 1, 2013 conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Entity with respect to any alleged irregularity, misstatement or omission arising under a Government Contract; and (z) neither the Company nor any of its Subsidiaries has received notice of nor, to the existence of any event or condition that constitutesCompany’s knowledge, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under their respective personnel has been suspended or debarred from doing business with any Material ContractGovernmental Entity or is, except where such default would not constitute or at any time has been, the subject of a Material Adverse Effect, and finding of non-responsibility or ineligibility (ivdue to misconduct) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on by any Governmental Entity contracting with the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectAcquired Companies.
Appears in 2 contracts
Samples: Merger Agreement (Borgwarner Inc), Merger Agreement (Remy International, Inc.)
Contracts. (a) Except for this Agreement Agreement, Benefit Plans and each Contract Contracts filed as an exhibit with the SEC prior to the Filed SEC Documents, date hereof or as set forth in Section 4.16(a4.18(a) of the Company Disclosure Letter sets forth a listSchedule, neither the Company nor any of its Subsidiaries is, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts party to or bound by any Contract which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatis:
(i) are or would be a “material contract” required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate a Contract which, to the formation knowledge of the Company, contains any covenant binding upon the Company or management any of its Subsidiaries that restricts the ability of the Company or any of its Subsidiaries to compete in any business in which the Company or its Subsidiaries is engaged or with any Person or in any geographic area that, in each case, are material to the Company and its Subsidiaries, taken as a whole, except for any such Contract that may be cancelled (and with respect to which such restrictions shall immediately be terminated in connection with such cancellation) without any penalty or other liability to the Company or any of its Subsidiaries upon notice of 60 days or less;
(iii) a joint venture, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iiiiv) provide an indenture, credit agreement or loan agreement pursuant to which any indebtedness for Indebtedness borrowed money in excess of $10,000,000 of the Company or any of its Subsidiaries having an is outstanding or committed amount equal to or in excess of $10,000,000may be incurred, other than any Indebtedness such Contract between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been a Contract which was entered into since January 1after December 31, 2017, and involve 2007 or which is not yet consummated for the acquisition from another Person or disposition to another Person disposition, directly or indirectly (by merger or otherwise), of capital stock or other equity interests of another Person or of assets constituting a business, in each case, business for aggregate consideration under such Contract in excess of $10,000,000 50,000,000;
(excludingvi) a Contract which, by its terms, calls for aggregate payments by the Company and its Subsidiaries under such Contract of more than $100,000,000 over the remaining term of such Contract (other than this Agreement, Contracts subject to clause (iv) above, purchase orders for the avoidance purchase of doubtinventory, acquisitions services or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets equipment in the ordinary course of business consistent with past practices, leases or licenses of supplies, products, properties, real property and Contracts that may be cancelled without penalty or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of liability to the Company or any of its SubsidiariesSubsidiaries upon notice of 60 days or less);
(vivii) prohibit a Contract with respect to an acquisition or divestiture of capital stock or other equity interests of another Person or of assets constituting a 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 dividends or distributions in respect $10,000,000;
(viii) to the knowledge of the shares Company, contains any covenant granting “most favored nation” status; or
(ix) is a lease for one or capital stock more parcels of real property that is or are material to the conduct of the business. Each such Contract described in clauses (i) through (ix) is referred to as a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each of the Material Contracts is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; provided that (A) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (B) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding thereof may be brought and (ii) there is no default under any Material Contract by the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge knowledge of the Company, any other party thereto, and no event has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither occurred that with the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, the giving of notice or both would constitute a default on the part of thereunder by the Company or any of its Subsidiaries under or, to the knowledge of the Company, any other party thereto. The Company has made available to Parent true and complete copies of each Material Contract, except where such default including any amendments or modifications thereto.
(c) The aggregate indebtedness for borrowed money that is outstanding or may be incurred under Contracts that would not constitute a Material Adverse Effect, and be required to be listed under section (iv) there of Section 4.18(a) of the Company Disclosure Letter if clause (iv) of Section 4.18(a) did not contain an exception for Contracts entered into in the ordinary course of business that relate to obligations for borrowed money that do not exceed $10,000,000 but are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty not listed under such Material Contract, except as would section of Section 4.18(a) of the Company Disclosure Letter is not constitute a Material Adverse Effectin excess of $50,000,000.
Appears in 2 contracts
Samples: Merger Agreement (RenPac Holdings Inc.), Merger Agreement (Pactiv Corp)
Contracts. (a) Except for this Agreement as set forth on Section 3.11 of the Disclosure Schedule (which (i) includes any amendment, supplement or modification to any Contract listed therein and each Contract filed as an exhibit (ii) shall not include Contracts that are invoices, statements of work or purchase orders entered into pursuant to the Filed SEC Documents, Section 4.16(a) terms of the Company Disclosure Letter sets forth a listother Contracts listed therein), as of the date hereof, neither the Company nor any of this Agreementits Subsidiaries is a party to or bound by any of the following Contracts that are Related to the Business:
(i) any Contract with any staffing company, temporary employee agency, professional employer organization or other similar company or agency;
(ii) any collective bargaining agreement or similar Contract with an employee representative or labor group representing any Business Employees;
(iii) any Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of all Material the Transferred Assets or letter of credit arrangements, surety or performance bonds, guarantee, support or similar arrangements;
(iv) any (A) Contract (or group of related Contracts. For purposes ) relating to or regarding Intellectual Property or (B) IT Asset Contract (excluding commercially available, off-the-shelf Software with a replacement cost or an annual license fee of this Agreement, “Material Contract” means all Contracts to less than $50,000 in the aggregate or for which the Company has made less than $50,000 in customized improvements in the aggregate);
(v) any Contract which prohibits the Company or any of its Subsidiaries is a party from competing or by which otherwise freely engaging in the Company, Business as currently conducted anywhere in the world in any of its Subsidiaries, material respect or that otherwise restricts any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness activities of the Company or any of its Subsidiaries having an outstanding or committed amount equal with respect to or the Business as currently conducted in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiariesmaterial respect;
(ivvi) are any keepwell Contract for the sale of Products or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a businessservices, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company containing “most-favored nation” pricing terms or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company exclusive dealing arrangement or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company“requirements” Contract;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its SubsidiariesShared Contract;
(viii) involve any Contract with any Material Customer or could reasonably be expected to involve aggregate payments Material Supplier (excluding ordinary course task orders or receipts service estimates containing terms and conditions materially consistent with the Company’s standard terms and conditions), and any other Contract which involves the payment by or to it and/or its Subsidiaries to, performance of services by or for, or the delivery of goods by or to, or capital expenditures by, the Company in excess of $10,000,000 750,000 in any twelve month period, other the aggregate over the shorter of: (xA) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary term of the Company of any material penalty, (y) any Company Lease, such Contract or (zB) the 2019 calendar year;
(A) any Contract with financial advisorsrelating to ownership of or investments in any business or enterprise and (B) partnership, investment bankersjoint venture, attorneysco-owner, accountants, consultants, limited liability company collaboration or strategic alliance or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;similar Contract; and
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant Contract involving a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsGovernmental Entity.
(b) As Each Assumed Contract and each Contract disclosed or required to be disclosed on Section 3.11 of the date of this AgreementDisclosure Schedule is a legal, (i) each Material Contract is valid and binding on obligation of the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicableCompany, and, to the Knowledge of the Company, each other party theretoto such Contract, and is enforceable against the Company, and, to the Knowledge of the Company, each such other party in full force and effectaccordance with its terms subject, except where in each case, to the failure effect of any applicable Laws relating to be validbankruptcy, bindingreorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in full force a proceeding in equity or at law), and effect would not constitute a Material Adverse Effect, (ii) neither the Company and each of its Subsidiaries, andnor, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material such Contract is in material default or material breach of such Contract, except where such noncompliance would not constitute a Material Adverse Effectand, (iii) neither to the Company nor any of its Subsidiaries has received notice Knowledge of the existence of Company, there does not exist any event event, condition or condition omission that constitutes, or, after notice would constitute such a material default or material breach (whether by lapse of time or notice or both, will constitute, a default ) under any Assumed Contract or any Contract disclosed or required to be disclosed on the part Section 3.11 of the Disclosure Schedule. Since January 1, 2018, the Company has not received any written notice of termination or nonrenewal with respect to any Assumed Contract or any Contract disclosed or required to be disclosed on Section 3.11 of its Subsidiaries under the Disclosure Schedule and, to the Knowledge of the Company, no other party to any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of Contract intends to provide any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectnotice.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Harsco Corp), Asset Purchase Agreement (Chart Industries Inc)
Contracts. Schedule 2.3.14 of the Disclosure Schedules contains a listing of the following undischarged written (or, to the knowledge of the Principal Stockholder, oral) contracts, agreements, leases and other instruments to which the Company is a party:
(a) Except agreements for this Agreement and each Contract filed as an exhibit the employment for any period of time whatsoever, or in regard to the Filed SEC Documentsemployment, Section 4.16(a) or restricting the employment, including any termination, severance or change in control agreements of any employee of the Company Disclosure Letter sets forth a listwho earns more than $75,000 per year;
(b) consulting agreements where the payment thereunder is in excess of $100,000 per year and which have an unexpired term in excess of one year;
(c) collective bargaining agreements;
(d) contracts or arrangements providing for bonuses, options, deferred compensation or stock appreciation rights;
(e) leases or subleases, either as lessee or sublessee, lessor or sublessor, of personal property, where the lease or sublease provides for an annual rent in excess of $100,000 and has an unexpired term in excess of one year;
(f) service agreements affecting any of the assets of any of the Company where the charges are reasonably expected to be in excess of $100,000 and which has an unexpired term as of the date hereof in excess of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound one year;
(other than Company Plans and insurance, reinsurance, or retrocession treaties or g) loan agreements, slips, binders, cover promissory notes, indentures, bonds, security agreements, guarantees or obligations for borrowed money or other instruments involving Indebtedness in an amount in excess of $100,000;
(h) any partnership, joint venture or other similar arrangements) that:agreement or arrangement;
(i) are any agreement containing any covenant or would be required to be filed by provision prohibiting the Company as a “material contract” pursuant from engaging in any line or type of business (except for such agreements which shall not apply to Item 601(b)(10the Company upon Closing) of Regulation S-K under the Securities Actor competing with any person;
(iij) relate any agreement under which it has advanced or loaned any amount to any of its directors, officers and employees outside the formation or management ordinary course of its business;
(k) any agreement under which a sale of any joint venture, partnership, or other similar agreement of the Real Estate that is material to the business operation of the Business is pending;
(l) any indemnification agreement by the Company running to any person that involves, individually or in the aggregate, a contingent liability of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000100,000 or more, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiariesin connection with customer contracts, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been agreements entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, with respect to directors or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary executive officers of the Company;
(viim) restrict any long-term or grant rights continuing agreements or arrangements with respect to use discounts or practice rights under material Intellectual Property, including agreements providing allowances or extended payment terms that provide for the creation receipt or development expenditure following the date hereof of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of more than $2,000,000500,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or purchase orders and sales orders in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business ordinary course of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiariesbusiness; or
(xivn) any other agreements that provide for the outsourcing receipt or expenditure following the date hereof of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conductedmore than $500,000, other than managing agency agreements or managing general underwriting agreementspurchase orders and sales orders in the ordinary course of business.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Exchange Agreement (Royster-Clark Nitrogen Realty LLC), Exchange Agreement (Royster-Clark Nitrogen Realty LLC)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company AHL or any of its Subsidiaries is a party or by which the CompanyAHL, any of its Subsidiaries, Subsidiaries or any of their respective properties or assets is bound (other than Company AHL Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangementsContracts pertaining to Investment Assets) that:
(i) are or would be required to be filed by the Company AHL as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) with respect to a joint venture, partnership or other similar agreement or arrangement, relate to the formation or management of any such partnership or joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company AHL or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000100 million, other than any Indebtedness between or among any of the Company AHL and any of its SubsidiariesSubsidiaries and other than any letters of credit;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 20172018, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, or any material assets or business of another Person, in each case, for aggregate consideration under such Contract in excess of $10,000,000 100 million;
(excluding, for v) restrict the avoidance transfer of doubt, acquisitions or dispositions equity interests of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company AHL or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company AHL or any of its wholly owned Subsidiaries, prohibit the pledging of the shares or capital stock of the Company AHL or any wholly owned Subsidiary of the Company AHL or prohibit the issuance of any guarantee by the Company AHL or any wholly owned Subsidiary of the CompanyAHL;
(vii) restrict agency, broker, selling, marketing or grant rights to use similar agreements between any AHL Insurance Subsidiary and any Producer of the AHL Insurance Subsidiary who or practice rights under material Intellectual Property, including agreements providing which was responsible for placing 1% or more of the aggregate statutory gross written premium of the AHL Insurance Subsidiary for the creation or development year ended December 31, 2020;
(viii) are with any financial advisor of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company AHL or any of its Subsidiaries relating to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company contain provisions that prohibit AHL or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates Person that controls, or is under common control with, AHL from competing in any material line of business or grant a right of exclusivity to any Person that which prevents the Company AHL or any Subsidiary or Affiliate of the Company AHL from entering any material territory, market, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company AHL or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company AHL or any Subsidiary of AHL of any penalty;
(x) pursuant to which AHL or any of its Subsidiaries (A) is granted or obtains any right to use any material Intellectual Property (other than Contracts granting rights to use common or industry standard commercially available business infrastructure and administrative software (e.g., database, enterprise resource planning, business management planning, desktop and similar software) and commercially available, off-the-shelf software (including “shrink-wrap” or “click-wrap” agreements)) or (B) grants an exclusive license to, or option to acquire, any Intellectual Property owned by AHL or any of its Subsidiaries that is material to the Company conduct of the businesses of AHL and its Subsidiaries as currently conducted (excluding licenses granted to third parties in the ordinary course of business);
(xi) involve or would reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10 million in any twelve-month period, other than those terminable on less than ninety (90) days’ notice without payment by AHL or any Subsidiary of AHL of any material penalty;
(xixii) involve the retention include an indemnification obligation of AHL or any independent contractor, consultant, or agency for the provision of services to the Company its Subsidiaries with annualized fees a maximum potential liability in excess of $300,000;
(xii) constitute collective bargaining agreements10 million;
(xiii) involve all material reinsurance or retrocession treaties and agreements of AHL or any of its Subsidiaries (the provision “AHL Reinsurance Contracts”);
(xiv) all investment asset management agreements of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company AHL or any of its Subsidiaries; or
(xivxv) provide for the outsourcing require any capital expenditure (or series of any material function or part of the business of the Company capital expenditures) by AHL or any of its Subsidiaries that is necessary for in an amount in excess of $10 in the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsaggregate.
(b) As of the date of this Agreement, (i) each Each Material Contract is valid and binding on the Company or AHL and/or any of its Subsidiaries, Subsidiaries to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the CompanyAHL, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, binding or in full force and effect would not constitute have a Material Adverse Effect, (ii) the Company AHL and each of its Subsidiaries, and, to the Knowledge of the CompanyAHL, any other party thereto, has have performed all obligations required to be performed by it them under each Material Contract, except where such noncompliance would not constitute have a Material Adverse Effect, (iii) neither the Company AHL nor any of its Subsidiaries has received notice of the existence of any event or condition that which constitutes, or, after notice or lapse of time or both, will would reasonably be expected to constitute, a default on the part of the Company AHL or any of its Subsidiaries under any Material Contract, except where such default would not constitute have a Material Adverse Effect, Effect and (iv) there are no events or conditions that which constitute, or, after notice or lapse of time or both, will constitute would reasonably be expected to constitute, a default on the part of any counterparty under such Material Contract, except as would not constitute have a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Apollo Global Management, Inc.), Merger Agreement (Athene Holding LTD)
Contracts. (a) Except for this Agreement and each Contract those Contracts filed as an exhibit exhibits to the Filed SEC Documents, Government Contracts (as defined below) or Contracts that cannot be disclosed as a result of applicable laws relating to the exchange of information, Section 4.16(a3.1(t) of the Company Disclosure Letter sets forth each Contract that the Company or any Subsidiary is a listparty to or bound by, as of the date hereof, that:
(i) is a “material contract” (as such term is defined in Item 601(b)(10) of this AgreementRegulation S-K of the SEC);
(ii) restricts in any material respect the Company or any Subsidiary or, to the Knowledge of all Material Contracts. For purposes the Company, that would, after the Effective Time, materially restrict Parent or any of this Agreementits Subsidiaries (including the Surviving Corporation and its Subsidiaries) or any successor thereto from engaging or competing in any material line of business in any geographic area.
(iii) is a loan and credit agreement, “Material Contract” means all Contracts note, debenture, bond, indenture or other similar Contract pursuant to which any Indebtedness of the Company or any of its Subsidiaries, in each case in excess of $5,000,000 is outstanding or may be incurred, other than any such Contract between or among any of the Company or any of its Subsidiaries;
(iv) by its terms calls for aggregate payments to or by the Company or any of its Subsidiaries of more than $5,000,000, except for any such Contract that may be canceled, without any penalty or other liability to the Company or any of its Subsidiaries in excess of $500,000, within one year;
(v) was entered into after January 2, 2000, to which the Company or any of its Subsidiaries is a party for the acquisition or disposition by which the Company, Company or any of its Subsidiaries, or any Subsidiaries of their respective properties or assets is bound for, in each case, aggregate consideration of more than $5,000,000 except for acquisitions and dispositions of properties and assets in the ordinary course of business (other than Company Plans including acquisitions and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) dispositions of Regulation S-K under the Securities Actinventory);
(iivi) relate to the formation involves any exchange traded, over-the-counter or management of other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument;
(vii) constitutes a joint venture, partnership, limited liability or other similar agreement (excluding licensing Contracts) relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and its Subsidiaries, taken as a whole;; or
(iiiviii) provide for Indebtedness is an agreement with respect to the employment of any director or executive officer of the Company. Each Contract of the type described in this Section 3.1(t) is referred to herein as a “Company Contract”. Each Company Contract (and each “standstill” agreement that restricts the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of acquiring the shares or capital stock assets of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(viianother Person) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a Subsidiary party thereto, as applicable, thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where for bankruptcy and similar laws affecting the failure enforcement of creditors’ rights generally or the availability of equitable remedies, and the Company or Subsidiary party thereto have performed all obligations required to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) performed by them to the date hereof under each Company and each of its Subsidiaries, Contract and, to the Knowledge of the Company, any each other party thereto, to each Company Contract has performed all obligations required to be performed by it under each Material such Company Contract, except where such noncompliance except, in each case, as has not had or would not constitute a Material Adverse Effectreasonably be expected to have, (iii) neither individually or in the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutesaggregate, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Edo Corp), Merger Agreement (Itt Corp)
Contracts. (a) Except for this Agreement The Disclosure Schedule lists all of the Assigned Contracts and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as following contracts or agreements to which any of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries Sellers is a party and that relate exclusively or by which primarily to the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatBusiness:
(i) are each agreement (or would be required group of related agreements with the same party) for the lease of personal property from or to be filed by third parties providing for lease payments the Company as a “material contract” pursuant to Item 601(b)(10) remaining unpaid balance of Regulation S-K under the Securities Actwhich is in excess of $5,000;
(ii) relate to each agreement (or group of related agreements with the formation same party) for the purchase of products or management services under which the undelivered balance of any joint venture, partnership, or other similar agreement that such products and services is material to the business in excess of the Company and its Subsidiaries, taken as a whole$5,000;
(iii) provide for Indebtedness each agreement (or group of related agreements with the same party) which involves payments to be made to any of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or Sellers in excess of $10,000,0005,000, either pursuant to a contract with a customer or pursuant to any other than any Indebtedness between contract or among any agreement for the sale of goods and services outside of the Company and any ordinary course of its Subsidiariesbusiness, consistent with past practice;
(iv) are each agreement for the acquisition of any keepwell operating business, whether by merger, stock purchase or similar agreement under asset purchase, except for any such business which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations did not become a part of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)Business;
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person each agreement establishing a partnership or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries)joint venture;
(vi) prohibit each agreement (or group of related agreements with the payment same party) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness the outstanding balance of dividends which is more than $5,000 or distributions in respect under which it has imposed a Security Interest on any of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the CompanyAcquired Assets;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or each agreement that restricts where any of its Subsidiaries to a third Person the Sellers may conduct the Business, the type or (y) a third Person to line of business in which the Company Business may engage or the parties with whom any of its Subsidiaries, the Sellers may engage in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its SubsidiariesBusiness;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by each agreement involving the Company or any Subsidiary compensation of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;Business Employees; and
(ix) would reasonably each severance, “stay pay” or termination agreement relating to a Business Employee; provided, however, that no agreement referred to in clauses (i) through (ix) above need be expected todisclosed unless any of the Sellers currently has, individually or may in the aggregatefuture have, prevent, materially delay, any rights or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsobligations thereunder.
(b) As The Sellers have made available to the Buyer a complete and accurate copy of each Designated Contract that is an Assigned Contract or has been requested by the date of this Agreement, (i) each Material Buyer. Each Designated Contract is a valid and binding on obligation of each the Company or any of its Subsidiaries, to the extent such Person Sellers that is a party thereto, as applicable, Party thereto and, to the Knowledge knowledge of the CompanySellers, of each other party thereto, and is in full force and effect, except where the for any such failure to be validvalid and binding that neither is, bindingnor would reasonably be expected to be, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, material to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectBusiness.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (I Many Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a4.15(a) of the Company Disclosure Letter sets forth a list, as of lists the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatparty:
(i) are or would be required to be filed by the Company as a “each "material contract” pursuant to " (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Securities ActSEC) to which the Company or any of its Subsidiaries is a party to or bound;
(ii) relate to each Contract not contemplated by this Agreement that limits the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness ability of the Company or any of its Subsidiaries having an outstanding or committed amount equal Affiliates to engage in or compete with any line of business in excess of $10,000,000any location or with any Person in any material manner;
(iii) each Contract that creates a partnership, other than joint venture or any Indebtedness between or among any of strategic alliance with respect to the Company and or any of its Subsidiaries;
(iv) are any keepwell each employment, consulting, services or similar agreement under which Contract with any employee or independent contractor of the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations involving more than $100,000 of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)annual compensation;
(v) have been each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract providing for Indebtedness individually in excess of $1,000,000;
(vi) each Contract entered into since January 1, 2017, and involve 2016 that relates to the acquisition from another Person or disposition to another Person disposition, directly or indirectly, of capital stock any business (whether by merger, sale of stock, sale of assets or otherwise) or any material assets, including any vessel (other equity interests of another Person than (A) this Agreement or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, B) acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, productsinventory, properties, merchandise or products (other assets than vessels) in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, surplus or no longer used or useful in the conduct of business of the Company 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 other vessel acquisition Contract entered into since January 1, 2016 for Newbuildings and secondhand vessels contracted for by the Company or any of its Subsidiaries)Subsidiaries (other than Company Owned Vessels) and other Contracts entered into since January 1, 2016 with respect to Newbuildings of the Company or any of its Subsidiaries and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viviii) prohibit each pool agreement, management agreement, crewing agreement or financial lease (including sale/leaseback or similar arrangements) with respect to any Company Vessel;
(ix) any Contract with a Third Party for the payment charter of dividends any Company Vessel;
(x) each collective bargaining agreement or distributions other Contract with a labor union to which the Company or any of its Subsidiaries is a party or otherwise bound;
(xi) each Contract that provides for indemnification by the Company or any of its Subsidiaries to any Person other than a Contract entered into in respect the ordinary course of business;
(xii) each Contract pursuant to which the shares Company or capital stock 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 the Company or any of its Subsidiaries is a party or otherwise bound that contains a so-called"most favored nations" provision or similar provisions requiring the Company 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 the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As The Company has heretofore made available to Parent true and complete copies of the Material Contracts as in effect as of the date hereof. Except as set forth on Section 4.15(b ) of this Agreementthe Company Disclosure Letter or would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) each of the Material Contract Contracts is valid valid, binding, enforceable and binding on in full force and effect with respect to the Company or any of and its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, and to the Knowledge of the Company, each the other party parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and is except for any Material Contracts that have expired or been terminated after the date hereof in full force accordance with its terms, and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) neither the Company and each nor any of its Subsidiaries, and, nor to the Knowledge of the Company, Company any other party thereto, has performed all obligations required to be performed by it under each a Material Contract, except where such noncompliance has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would not constitute a breach or default under, or give rise to any right of cancellation or termination of or consent under, such Material Adverse EffectContract, (iii) and neither the Company nor any of its Subsidiaries has received written notice of the existence of any event that it has breached, violated or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries defaulted under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Euronav NV), Agreement and Plan of Merger (Euronav NV)
Contracts. (a) Except for this Agreement Contracts previously filed with the SEC and Parent Plans, Section 4.18 of the Parent Disclosure Letter identifies each Contract filed that constitutes a Parent Material Contract (as defined below) (other than Parent Material Contracts described in (a)(ii) below), an exhibit accurate and complete copy of which (other than Parent Material Contracts described in (a)(ii) below) has been provided or made available to the Filed SEC Documents, Section 4.16(a) of Company by Parent on the Company Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material ContractsDatasite. For purposes of this Agreement, “Material Contract” means all each of the following Contracts to that is unexpired and effective as of the date of this Agreement and under which the Company Parent or any of its Subsidiaries is has ongoing rights or obligations will be deemed to constitute a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that“Parent Material Contract”:
(i) are any Contract that is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10601(b)(10)(i) of Regulation S-K under the Securities ActAct or disclosed by the Company on a Current Report on Form 8-K;
(ii) relate any Contract that, by its terms, requires payments by Parent or any of its Subsidiaries in excess of $300,000 in the aggregate for the remainder of the stated term of such Contract, other than those that are terminable by Parent or any of its Subsidiaries on no more than ninety (90) days’ notice and without liability or financial obligation to Parent or any of its Subsidiaries;
(iii) any mortgages, indentures, guarantees, loans, credit agreements, security agreements or other Contracts relating to the formation borrowing of money or extension of credit, in each case, in excess of $300,000, other than (A) accounts receivables and payables, and (B) loans to, or guarantees for, direct or indirect wholly-owned Subsidiaries of Parent, in each case, in the ordinary course of business consistent with past practice;
(iv) any Contract limiting, in any respect, the freedom of Parent or any of its Subsidiaries to engage or participate, or compete with any other Person, in the business conducted by Parent and its Subsidiaries as of the date of this Agreement in any market or geographic area, or to make use of any material Intellectual Property owned by Parent or any of its Subsidiaries;
(v) (A) any Contract pursuant to which Parent or any of its Subsidiaries is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than Parent or a Subsidiary thereof) any real property that by the Contract’s terms requires payment or receipt of payment, as the case may be, in excess of $300,000, and (B) any executory Contract for the sale or purchase of any real property;
(vi) any Contract with any of Parent’s or any of its Subsidiaries’ officers, directors, employees, principal stockholders or Persons who, to the knowledge of Parent, are controlled thereby, or, to the knowledge of Parent, any member of such Persons’ immediate families, other than (A) any written employment, consulting or management of any joint venture, partnershipservices agreement or other compensation or benefit plan with Parent, or (B) Parent’s or its Subsidiaries’ written employee policies and procedures;
(vii) any Contract pursuant to which any third Person is licensed to use any Intellectual Property owned by Parent or any of its Subsidiaries, and all Contracts pursuant to which Parent or any of its Subsidiaries is licensed to use any Intellectual Property, other similar agreement that than Contracts for commercially available off-the-shelf Software licensed to Parent or any of its Subsidiaries for an amount not in excess of $300,000 in any case over the term of the applicable Contract;
(viii) any Contract with any labor union; or
(ix) any Contract obligating Parent to manage any gaming assets on behalf of an unrelated third party.
(b) Each Parent Material Contract is material valid and in full force and effect, and is enforceable against Parent and its Subsidiaries (and, to the knowledge of Parent, is enforceable against each other party thereto) in accordance with its terms, except to the extent that such Parent Material Contract has previously expired in accordance with their terms, or if the failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the operations or business of the Company Parent and its Subsidiaries, taken as a whole;, and subject in all cases to: (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) Laws governing specific performance, injunctive relief and other equitable remedies.
(iiii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of Neither Parent nor its Subsidiaries has directly guaranteed any liabilities materially violated or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelinesmaterially breached, or of suppliescommitted any default under, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its SubsidiariesParent Material Contract; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge knowledge of the CompanyParent, no other Person has materially violated or materially breached, or committed any default under, any other party thereto, has performed all obligations required to be performed by it under each Parent Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, ; and (iii) neither the Company Parent nor any of its Subsidiaries has received any written notice of the existence of any event or condition that constitutes, or, after notice to the knowledge of Parent, other communication regarding any actual or lapse of time possible material violation or bothmaterial breach of, will constituteor default under, a default on the part of the Company or any of its Subsidiaries under any Parent Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Isle of Capri Casinos Inc), Merger Agreement (Eldorado Resorts, Inc.)
Contracts. (a) Except for this Agreement and each Contract except for Contracts filed as an exhibit exhibits to the Filed Company SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date of this Agreement, none of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its the Company Subsidiaries is a party to or bound by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatthe following:
(i) are or any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of Contract containing covenants binding upon the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness or the Company Subsidiaries that restrict the ability of the Company or any of the Company Subsidiaries (or which, following the consummation of the Offer or the Merger, would materially restrict the ability of the Surviving Corporation or its Subsidiaries having an outstanding affiliates) to compete in any business or committed amount equal geographic area or with any person;
(iii) any Contract pursuant to which the Company or any Company Subsidiary is subject to continuing indemnification or “earn-out” obligations (whether related to environmental matters or otherwise), in each case, that would reasonably be expected to result in payments by the Company or any Company Subsidiary in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries1,000,000;
(iv) are any keepwell Contract for the acquisition, sale, lease or similar agreement license of material properties or assets of the Company or the Company Subsidiaries outside the ordinary course of business (by merger, purchase or sale of assets or stock or otherwise) entered into since April 1, 2007;
(v) any Contract relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset) or under which the Company or any of its Subsidiaries has Company Subsidiary has, directly guaranteed or indirectly, made any liabilities loan, capital contribution to, or obligations of another Person or under which another Person has directly guaranteed other investment in, any liabilities or obligations of person (other than in the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (Company Subsidiary and other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations (A) extensions of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets credit in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful and (B) investments in marketable securities in the conduct ordinary course of business of the Company or any of its Subsidiariesconsistent with past practice);; or
(vi) prohibit the payment of dividends any Contract constituting a material joint marketing, partnership, joint venture or distributions in respect other similar arrangement. Each such Contract of the shares or capital stock type described in clauses (i) through (vi) along with each of the Contracts set forth in Section 3.17(a) of the Company or any of its Subsidiaries, prohibit the pledging Disclosure Letter is referred to herein as a “Material Contract”.
(b) Each of the shares or capital stock of Material Contracts is valid, binding and enforceable on the Company or any Subsidiary of the Company or prohibit Subsidiaries, as the issuance of any guarantee by case may be, and, to the Company or any Subsidiary knowledge of the Company;
(vii) restrict , each other party thereto and is in full force and effect, except for such failures to be valid, binding or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by enforceable or to it and/or its Subsidiaries be in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected tofull force and effect as, individually or in the aggregate, preventwould not reasonably be expected to have a Company Material Adverse Effect and except that such enforceability may be (i) limited by bankruptcy, materially delayinsolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general application relating to or affecting creditors’ rights generally and (ii) subject to general equitable principles (whether considered in a proceeding in equity or at law) and any implied covenant of good faith and fair dealing. Each of the Company and the Company Subsidiaries has complied in all material respects with the terms and conditions of the Material Contracts and is not (with or without notice or lapse of time, or materially impede both) in breach or default thereunder, in each case except as would not, individually or in the Company’s ability aggregate, reasonably be expected to consummate have a Company Material Adverse Effect.
(c) Except as would not reasonably be expected to have, individually or in the Transactions aggregate, a Company Material Adverse Effect, with respect to each Material Contract, and each offer, quote, bid or Parent’s ability proposal (a “Government Contract Bid”) that, if accepted, would result in a Material Contract, between the Company or any Company Subsidiary, on the one hand, and any (i) Governmental Entity, (ii) prime contractor of a Governmental Entity in its capacity as a prime contractor or (iii) subcontractor with respect to own and/or conduct any Contract listed in clause (i) or (ii) above, on the business other hand (each, a “Government Contract”), as of the date of this Agreement: (A) none of the Company or any Company Subsidiary has been notified in writing, or to the knowledge of its Subsidiaries after the Effective Time;
(x) contain provisions Company orally, by any Governmental Entity or any prime contractor, subcontractor or vendor that prohibit the Company or any Company Subsidiary has defaulted, breached or violated, or is alleged to have defaulted, breached or violated, any applicable Law, certification, representation, warranty, clause, provision or requirement pertaining to such Government Contract or Government Contract Bid, and none of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate Company Subsidiary is in default, breach or violation of the Company from entering any material territorysuch applicable Law, marketcertification, representation, warranty, clause, provision or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated requirement; (including such restrictive provisionsB) by none of the Company or any of its Subsidiaries on less than ninety (90) days’ Company Subsidiary has received any notice without payment by of, and to the Company or any Subsidiary knowledge of the Company no person has threatened to give any notice of, termination for convenience, notice of any material penalty;
termination for default, cure notice or show cause notice pertaining to such Government Contract; (xiC) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services no payments due to the Company or any of its SubsidiariesCompany Subsidiary pertaining to such Government Contract have been withheld or set off nor has any claim been made to withhold or set off money; orand (D) no Government Contract or Government Contract Bid is based on the Company or any Company Subsidiary having § 8(a) status, small business status, small disadvantaged business status, protégé status, or other preferential status afforded by Federal statute or regulation.
(xivd) provide for Except as would not reasonably be expected to have, individually or in the outsourcing aggregate, a Company Material Adverse Effect, with respect to each Contract, and each offer, quote, bid or proposal that, if accepted, would result in a Contract, between the Company or any Company Subsidiary, on the one hand, and any (i) Governmental Entity, (ii) prime contractor of a Governmental Entity in its capacity as a prime contractor or (iii) subcontractor with respect to any material function Contract listed in clause (i) or part (ii) above, on the other hand, as of the business date of this Agreement, there is no claim pending (other than qui tam claims or other similar claims filed under seal and of which the Company does not have knowledge) or, to the knowledge of the Company, threatened, including any claim for fraud (as such concept is defined under the state or Federal laws of the United States) under the United States False Claims Acts or the United States Procurement Integrity Act.
(e) Within the past three years:
(i) None of the Company or any Company Subsidiary or any of its Subsidiaries that is necessary for their respective directors, officers, employees (nor to the conduct knowledge of the business Company, any consultants, agents or other representatives of the Company and its Subsidiaries as currently conductedany Company Subsidiary) is or has been: (A) under any material administrative, civil, or criminal investigation or indictment by any Governmental Entity (in each case, other than managing agency agreements broad based routine audits or managing general underwriting agreementsinquiries in the ordinary course) or (B) subject to any material administrative investigation or material audit by any Governmental Entity, in either case with respect to any act or omission arising under or relating to any Government Contract; and
(ii) None of the Company or any Company Subsidiary is or has been debarred or suspended from participation in, or the award of, Contracts with any Governmental Entity. Additionally, to the knowledge of the Company, there exist no facts or circumstances that would warrant the institution of suspension or debarment proceedings or a finding of non-responsibility or ineligibility on the part of the Company, the Company Subsidiaries or any of their respective directors or officers.
(bf) As of the date of this Agreement:
(i) There are no material outstanding disputes between the Company or any Company Subsidiary, on the one hand, and any Governmental Entity, on the other hand, under the Contract Disputes Act of 1978, as amended, or any other Federal Law or between the Company or any Company Subsidiary, on the one hand, and any prime contractor, subcontractor, vendor or third party, on the other hand, arising under or relating to any Government Contract;
(ii) There are no material outstanding claims against the Company or a Company Subsidiary, either by a Governmental Entity or by a prime contractor, subcontractor, vendor or other third party arising under or relating to any Government Contract or Government Contract Bid to which the Company or a Company Subsidiary is a party; and
(iii) None of the Company or any Company Subsidiary has any interest in any material pending or, to the knowledge of the Company, material potential claim under the Contracts Dispute Act against the United States Government or any prime contractor, subcontractor, vendor or third party arising under or relating to any Government Contract.
(g) As of the date of this Agreement, the Company and all Company Subsidiaries are in material compliance with all national security obligations including those specified in the NISPOM.
(h) Section 3.17(h) of the Company Disclosure Letter sets forth a list of the classified Contracts of the Company and the Company Subsidiaries as of the date of this Agreement and is true and accurate in all material respects.
(i) each Material Contract is valid The Company and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is Subsidiaries have complied in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, all material respects with Federal Acquisition Regulation (ii“FAR”) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part 52.203-13(b)(3)(i). None of the Company or any of its Subsidiaries Company Subsidiary has made any mandatory or voluntary disclosure under FAR 52.203-13(b)(3)(i) to any Material ContractGovernmental Entity, except where such default would not constitute a Material Adverse Effectprime contractor, and subcontractor, vendor or any other person with respect to any Government Contract or Government Contract Bid.
(ivj) there are no events No Governmental Entity has found the Company’s or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectCompany Subsidiaries’ cost accounting system to be inadequate.
Appears in 2 contracts
Samples: Merger Agreement (Cgi Group Inc), Merger Agreement (Stanley, Inc.)
Contracts. (a) Except for this Agreement Other than those Contracts entered into with customers or suppliers in the ordinary course of business and each Contract filed as an exhibit to those Contracts set out in the Filed SEC Documents, list contained in Section 4.16(a5.26(a) of the Company Buyer’s Disclosure Letter sets forth a listSchedules, which are in effect as of the date of this Agreement, none of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company Buyer Ultimate Parent or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets Controlled Affiliates is bound (other than Company Plans and insurance, reinsurance, by or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatsubject to:
(i) are any Contract, other than a Buyer Benefit and Compensation Arrangement, that is reasonably expected to provide for payments to, or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) provide for payments from, Buyer Ultimate Parent or any of Regulation S-K under the Securities Actits Controlled Affiliates, in excess of $10,000,000;
(ii) relate any Contract prohibiting or materially restricting the ability of any of by Buyer Ultimate Parent or any of its Controlled Affiliates to the formation conduct its business, to engage in any business or management of operate in any geographical area or to compete with any Person;
(iii) any Contract for any joint venture, partnershipstrategic alliance, partnership or similar arrangement involving a sharing of profits or expenses or payments based on revenues, profits, or other similar agreement assets under management of Buyer Ultimate Parent or any of its Controlled Affiliates that is reasonably expected to account for revenue to Buyer Ultimate Parent or any of its Controlled Affiliates in excess of $10,000,000 on an annual (or annualized) basis or that would reasonably be expected to be material to the business of the Company Buyer Ultimate Parent and its SubsidiariesControlled Affiliates, taken as a whole;
(iiiiv) provide for any Contract relating to any Indebtedness of the Company Buyer Ultimate Parent or any of its Subsidiaries having Controlled Affiliates in an outstanding or committed amount equal to or in excess of $10,000,000, other than than: (A) any Indebtedness solely between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company Buyer Ultimate Parent or any of its Subsidiaries has directly guaranteed Controlled Affiliates; or (B) any liabilities or obligations Indebtedness for which none of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or Buyer Ultimate Parent nor any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which Controlled Affiliates will be liable following the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)Closing;
(v) have been any Contract under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, liabilities or obligations of any of Buyer Ultimate Parent or any of its Controlled Affiliates that would reasonably be expected to be material to Buyer Ultimate Parent and its Controlled Affiliates, taken as a whole, or (B) Buyer Ultimate Parent or any of its Controlled Affiliates has directly or indirectly guaranteed or otherwise agreed to be responsible for Indebtedness or liabilities of any Person (other than any of Buyer Ultimate Parent or any of its Controlled Affiliates) in each case in excess of $10,000,000;
(vi) any Contract that provides for earn-outs or other similar contingent obligations that would reasonably be expected to result in annual payments of $10,000,000 or more; and
(vii) any Contract entered into since January 1, 2017, and involve 2007 for the acquisition from another or disposition of a Person or disposition to another Person of capital stock or other equity interests of another Person or a division of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment GuidelinesPerson, or the acquisition or sale of supplies, products, properties, or other any assets in the ordinary course of comprising a business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsgoing concern.
(b) As Buyer Ultimate Parent has made available to Seller Parent prior to the date of this Agreement a complete and correct copy of each written Contract described in Section 5.26(a) above (the “Buyer Specified Contracts”) and accurate and complete descriptions of all material terms of each oral Buyer Specified Contract, including all material amendments, modifications and supplements thereto as in effect on the date of this Agreement. Each Buyer Specified Contract is in full force and effect, (i) each Material Contract and is valid and binding on the Company Buyer Ultimate Parent or any of its Subsidiaries, to the extent such Person Controlled Affiliates that is a party thereto, as applicable, and, to the Knowledge of the CompanyBuyer Parties, on each other party thereto, and is in full force and effect, except where . There exists no breach or default of any Buyer Specified Contract on the failure to be valid, binding, part of any of Buyer Ultimate Parent or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event Controlled Affiliates which (with or condition that constitutes, or, after without notice or lapse of time or both) would, will constituteindividually or in the aggregate, have a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Buyer Material Adverse Effect. No Buyer Party has received any written notice of an intention to terminate, and (iv) there are no events not to renew or conditions that constitute, or, after notice to challenge the validity or lapse of time or both, will constitute a default on the part enforceability of any counterparty under such Material Buyer Specified Contract, except as would not constitute the termination, failure to renew or challenge of which would, individually or in the aggregate, have a Buyer Material Adverse Effect.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Tang Hsiang Chien), Stock Purchase Agreement (TTM Technologies Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit Neither the Company nor any Company Subsidiary is a party to or bound by any:
(i) employment agreement or employment contract;
(ii) covenant not to compete or other covenant restricting the Filed SEC Documents, Section 4.16(a) business or operations of the Company Disclosure Letter sets forth a list, as or any Company Subsidiary;
(iii) Contract with any officer or director of the date Company (other than employment agreements covered by clause (i) above);
(iv) Contract under which the Company or a Company Subsidiary has borrowed or agreed to borrow any money from, or issued any note, bond, debenture or other evidence of this Agreementindebtedness to, any person or any other note, bond, debenture or other evidence of all Material Contracts. For purposes indebtedness of this Agreementthe Company or a Company Subsidiary in any such case which, “Material individually, is in excess of $1,000,000;
(v) Contract (including any so-called take-or-pay or keepwell agreements) under which (A) any person including the Company or a Company Subsidiary, has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or a Company Subsidiary in excess of $1,000,000 or (B) the Company or a Company Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person, including the Company or another Company Subsidiary, in excess of $1,000,000 (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(vi) Contract under which the Company or a Company Subsidiary has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person in excess of $1,000,000 (other than the Company or a Company Subsidiary and other than extensions of trade credit in the ordinary course of business);
(vii) Contract granting a Lien upon any Company Property or any other asset of the Company or any Company Subsidiary securing indebtedness or other obligations, in each case in excess of $1,000,000;
(viii) Contract providing for indemnification of any person in excess of $1,000,000 with respect to material liabilities relating to any current or former business of the Company, a Company Subsidiary or any predecessor person;
(ix) a Contract not made in the ordinary course of business in which the amount involved exceeds $1,000,000;
(A) a Contract with a Governmental Entity in which the amount involved exceeds $1,000,000 and (B) a material license or permit by or from any Governmental Entity;
(xi) currency exchange, interest rate exchange, commodity exchange or similar Contract” means all Contracts ;
(xii) a Contract for any joint venture, partnership or similar arrangement;
(xiii) a lease, sublease or similar agreement with respect to Company Property in which the amount involved exceeds $1,000,000;
(xiv) a Contract under which the Company or a Company Subsidiary has agreed to purchase or lease any real property or any interest in real property for a purchase price in excess of $1,000,000 or an annual rental in excess of $1,000,000 or to construct any improvements on real property or a leasehold interest in real property for a contract sum in excess of $1,000,000; or
(xv) a Contract other than as set forth above to which the Company or any of its Subsidiaries a Company Subsidiary is a party or by which the Company, it or any of its Subsidiaries, assets or any of their respective properties or assets businesses is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement subject that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company Subsidiaries or any the use or operation of its Subsidiaries having an outstanding or committed their assets and in which the amount equal to or in excess of involved exceeds $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of All Contracts required to be listed in the date of this AgreementCompany Disclosure Letter (the "Company Contracts") are valid, (i) each Material Contract is valid binding and binding on enforceable against the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, applicable Company Subsidiary in accordance with their respective terms and, to the Knowledge knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or are in full force and effect would not constitute a Material Adverse Effect, (ii) in all material respects. The Company or the applicable Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, Subsidiary has performed all material obligations required to be performed by it to date under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of Contracts, and it is not (with or without the existence of any event or condition that constitutes, or, after notice or lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, will constitute, a default on to the part knowledge of the Company, no other party to any Company Contract is (with or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or without the lapse of time or the giving of notice, or both, will constitute a ) in breach or default on in any material respect thereunder. None of the part Company and the Company Subsidiaries has received any written notice of the intention of any counterparty under such Material party to terminate any Company Contract, except as would not constitute a Material Adverse Effectand no party has, to the knowledge of the Company, any such intention. Complete and correct copies of all Company Contracts, together with all modifications and amendments thereto, have been previously delivered or made available to Parent.
Appears in 2 contracts
Samples: Stockholders Agreement (Boyd Gaming Corp), Stockholders Agreement (Boyd Gaming Corp)
Contracts. (a) Except for this Agreement and Set forth in Section 3.13(a) of the Company Disclosure Schedule is a list of (i) each Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Filed Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC Documentson the date hereof, and (ii) each of the following to which the Company or any of its Subsidiaries is a party: (A) Contract that purports to limit, curtail or restrict the ability of the Company or any of its existing or future Subsidiaries or Affiliates to compete in any geographic area or line of business or restrict the Persons to whom the Company, any of its existing or future Subsidiaries or Affiliates may sell products or deliver services, (B) partnership or joint venture agreement, (C) Contract for the acquisition or sale of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) (1) entered into since January 1, 2006 or (2) currently in effect, which requires ongoing performance or imposes ongoing obligations, (D) Contract with any (x) Governmental Authority or (y) director or officer of the Company or any of its Subsidiaries or Affiliates, (E) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which such indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries, (F) financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities, (G) voting agreement or registration rights agreement, (H) mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or assets of the Company or any of its Subsidiaries, (I) customer, client or supply Contract that involves consideration in the Company’s fiscal year ended December 31, 2010 in excess of $500,000 or that is reasonably likely to involve consideration in the Company’s fiscal year ending December 31, 2011 or the Company’s fiscal year ending December 31, 2012 in excess of $500,000, (J) Contract (other than customer, client or supply Contracts) that involve consideration (whether or not measured in cash) of greater than $500,000, (K) collective bargaining agreement, (L) to the extent material to the business or financial condition of the Company and its Subsidiaries, taken as a whole, (1) lease or rental Contract, (2) product design or development Contract, (3) consulting Contract, (4) indemnification Contract, (5) license or royalty Contract, (6) merchandising, sales representative or distribution Contract or (7) Contract granting a right of first refusal or first negotiation, and (M) commitment or agreement to enter into any of the foregoing (the Contracts and other documents required to be listed on Section 4.16(a3.13(a) of the Company Disclosure Letter sets forth Schedule, together with any and all other Contracts of such type entered into in accordance with Section 5.2(a), each a list, “Material Contract”). The Company has heretofore made available to Parent correct and complete copies of each Material Contract in existence as of the date hereof, together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto.
(b) Each of this Agreementthe Material Contracts is valid, binding and in full force and effect and is enforceable in accordance with its terms by the Company and its Subsidiaries party thereto, subject to the Bankruptcy and Equity Exception. No approval, consent or waiver of all any Person is needed in order that any Material ContractsContract continues in full force and effect following the consummation of the Merger. For purposes None of this Agreement, “the Company or any of its Subsidiaries is in default under any Material Contract” means all Contracts Contract or other Contract to which the Company or any of its Subsidiaries is a party (collectively, the “Company Contracts”), nor does any condition exist that, with notice or lapse of time or both, would constitute a default thereunder by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its SubsidiariesSubsidiaries party thereto, taken as except for such defaults as, individually or in the aggregate, have not had and would not reasonably be expected to have a whole;
(iii) provide Company Material Adverse Effect. To the Knowledge of the Company, no other party to any Company Contract is in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a default by any such other party thereunder, except for Indebtedness such defaults as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. None of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received any notice of the existence of any event termination or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries cancellation under any Material Contract, except where such received any notice of breach or default in any material respect under any Material Contract which breach has not been cured, or granted to any third party any rights, adverse or otherwise, that would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part breach of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Allegheny Technologies Inc), Merger Agreement (Ladish Co Inc)
Contracts. (a) Except for this Agreement The Company has made available to Parent true, correct and each Contract filed as an exhibit complete copies of, all contracts, agreements, commitments, arrangements, leases (including with respect to the Filed SEC Documents, Section 4.16(apersonal property) of the Company Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts and other instruments to which the Company or any of its Subsidiaries is a party as of the date hereof or by which the Company, any of its Subsidiaries, Subsidiaries or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatas of the date hereof which:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities ActAct or disclosed by the Company on a Current Report on Form 8-K;
(ii) relate contains covenants that limit the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, could materially restrict the ability of the Surviving Corporation) to compete in any material line of business of the Company or any of its Subsidiaries, except for any such contract that may be canceled without any penalty or other liability to the formation Company or management any of any its Subsidiaries upon notice of 60 days or less;
(iii) with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and its the Subsidiaries, taken as a whole;
(iiiiv) provide for Indebtedness of the Company involve any exchange-traded or over-the-counter swap, forward, future, option, cap, floor or collar financial contract, or any other interest-rate or foreign currency protection contract, other than any such contracts entered into in the ordinary course of its Subsidiaries business;
(v) relate to (A) indebtedness for borrowed money and having an outstanding or committed principal amount equal to or in excess of $10,000,00050,000,000 or (B) conditional sale arrangements, other than any Indebtedness between the sale, securitization or among any servicing of loans or loan portfolios, in each case in connection with which the aggregate actual or contingent obligations of the Company and any of its SubsidiariesSubsidiaries under such contract are greater than $50,000,000;
(ivvi) are was entered into after December 31, 2005, involving the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such contract in excess of $50,000,000 (other than acquisitions or dispositions of assets in the ordinary course of business, including acquisitions and dispositions of inventory);
(vii) by its terms calls for aggregate payments by the Company and its Subsidiaries or aggregate payments to the Company and its Subsidiaries under such contract of more than $25,000,000 over the remaining term of such contract;
(viii) with respect to any keepwell acquisition by the Company or similar agreement under its Subsidiaries pursuant to which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiariescontinuing indemnification, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock “earn-out” or other equity interests of another Person or of a businesscontingent payment obligations, in each case, for aggregate consideration under such Contract that could result in payments in excess of $10,000,000 25,000,000;
(excludingix) involve any directors, for the avoidance of doubt, acquisitions executive officers or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business 5% stockholders of the Company that cannot be canceled by the Company within 30 days’ notice without liability, penalty or any of its Subsidiaries)premium;
(vix) prohibit the payment of dividends involve any labor union or distributions in respect of the shares other employee organization, including any works council or capital stock of the Company foreign trade union or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Companytrade association;
(viixi) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) obligate the Company or any of its Subsidiaries to provide indemnification or a third Person guarantee, other than obligations incurred in the ordinary course of business or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees involve amounts in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;25,000,000; or
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part is an IP License. Each contract of the business of the Company or any of its Subsidiaries that type described in clauses (i) through (xii) is necessary for the conduct of the business of the Company and its Subsidiaries referred to herein as currently conducted, other than managing agency agreements or managing general underwriting agreementsa “Material Contract”.
(b) As of the date of this AgreementExcept as would not have a Material Adverse Effect, (i) each Material Contract is valid and binding on the Company or and any Subsidiary of its Subsidiaries, to the extent such Person Company which is a party thereto, as applicable, thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force effect and effect would not constitute a Material Adverse Effect, (ii) the Company and its Subsidiaries have performed and complied with all obligations required to be performed or complied with by them under each Material Contract. There is no default under any Material Contract by the Company or any of its Subsidiaries, andSubsidiaries or, to the Knowledge of the Company, by any other party theretoparty, and no event has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither occurred that with the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, the giving of notice or both would constitute a default on the part of thereunder by the Company or any of its Subsidiaries under Subsidiaries, or to the Knowledge of the Company, by any Material Contractother party, except where such default which would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute have a Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Freescale Semiconductor Inc), Merger Agreement (Freescale Semiconductor Inc)
Contracts. (a) Except SECTION 5.22 of the Disclosure Letter contains a complete and accurate list of all contracts (written or oral), undertakings, commitments or agreements (other than contracts, undertakings, commitments or agreements for this Agreement employee benefit matters set forth in SECTION 5.12 of the Disclosure Letter and each Contract filed as an exhibit to real property leases set forth in SECTION 5.26 of the Filed SEC Documents, Section 4.16(aDisclosure Letter) of the Company Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts following categories to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets them is bound (other than Company Plans collectively, and insurancetogether with the contracts, reinsuranceundertakings, commitments or retrocession treaties or agreementsagreements for employee benefit matters set forth in SECTION 5.12 of the Disclosure Letter and the real property leases set forth in SECTION 5.26 of the Disclosure Letter, slips, binders, cover notes, or other similar arrangements) that:the "CONTRACTS"):
(i) are Contracts requiring annual expenditures by or would be required to be filed by liabilities of the Company as and its Subsidiaries in excess of One Hundred Thousand Dollars ($100,000) which have a “remaining term in excess of one hundred eighty (180) days or are not cancelable (without material contract” pursuant to Item 601(b)(10penalty, cost or other liability) of Regulation S-K under the Securities Actwithin one hundred eighty (180) days;
(ii) relate promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments relating to the formation lending of money, whether as borrower, lender or management guarantor, in excess of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;One Hundred Thousand Dollars ($100,000).
(iii) provide for Indebtedness Contracts containing covenants limiting the freedom of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or engage in excess any line of $10,000,000, business (other than prohibitions against engaging in business relating to specific product lines) or compete with any Indebtedness between person, in any product line or among line of business, or operate at any location;
(iv) joint venture or partnership agreements or joint development or similar agreements pursuant to which any third party has been entitled or is reasonably expected to be entitled to share in profits or losses of the Company and any of or its Subsidiaries;
(ivv) Contracts with any federal, state or local government which have a remaining term in excess of one year or are any keepwell not cancelable (without material penalty, cost or similar agreement under other liability) within one year;
(vi) other Contracts or commitments in which the Company or any of its Subsidiaries has directly guaranteed granted manufacturing rights or exclusive marketing rights relating to any liabilities product or obligations service, any group of another Person products or under which another Person has directly guaranteed any liabilities or obligations of the Company services or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;territory; and
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or knowledge of the Company, as of the date hereof any other Contract the performance of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could be reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) require expenditures by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of One Hundred Thousand Dollars ($300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements100,000).
(b) As Except as set forth in SECTION 5.22 of the date Disclosure Letter, true and complete copies of this Agreementthe written Contracts and descriptions of verbal Contracts, (i) each Material Contract if any, have been delivered or made available to UMI and MergerSub. Each of the Contracts is a valid and binding on obligation of the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge Company's knowledge, the other parties thereto, enforceable against the Company in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization, arrangement or similar laws affecting creditors' rights generally and by general principles of equity. To the knowledge of the Company, each other party thereto, except for the execution of this Agreement and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge consummation of the Companytransactions contemplated hereby and thereby, any other party theretono event has occurred which would, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after on notice or lapse of time or both, will constituteentitle the holder of any indebtedness issued pursuant to a Contract identified in SECTION 5.22 of the Disclosure Letter in response to paragraph (ii) above to accelerate, or which does accelerate, the maturity of any such indebtedness.
(c) None of the Company or its Subsidiaries is in breach, default or violation (and no event has occurred or not occurred through the Company's action or inaction or, to the knowledge of the Company, through the action or inaction of any third parties, which with notice or the lapse of time or both would constitute a breach, default on the part or violation) of any term, condition or provision of any Contract to which the Company or any of its Subsidiaries under is now a party or by which any Material Contractof them or any of their respective properties or assets may be bound, except where such default for violations, breaches or defaults that, individually or in the aggregate, would not constitute have a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default Effect on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectCompany.
Appears in 2 contracts
Samples: Merger Agreement (Laser Power Corp/Fa), Merger Agreement (Union Miniere S a /Fi)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC DocumentsOther Transaction Agreements, Section 4.16(a) neither Trident, nor any of the Company Disclosure Letter sets forth a listits Assets, rights, properties or Subsidiaries, as of the date of this Agreementhereof, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party to or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatby:
(i) are or would be required to be filed by the Company as a any “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Exchange Act) as such term would be applied to the Fountain Business as if a separate entity which was subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act;
(ii) relate any non-competition Contract or other Contract that is related to the formation or management Fountain Business and purports to limit in any material respect either the type of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company in which Trident or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excludingand, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to following the Investment GuidelinesFountain Distribution Date and Effective Time, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company Fountain or any of its Subsidiaries)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 contains any material exclusivity or non-solicitation provisions;
(viiii) prohibit any Contract that limits or otherwise restricts the payment ability of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company Fountain or any of its Subsidiaries to a third Person pay dividends or make distributions to its shareholders;
(yiv) a third Person any material partnership, joint venture or similar Contract relating to the Company Fountain Business;
(v) any Contract, or series of related Contracts, under which Fountain or any of its Subsidiaries, in each caseFountain Sub is or may be liable for indebtedness for borrowed money (which, for aggregate annual or one-time fees the avoidance of doubt, shall not be deemed to include any capital leases) in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to25 million, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability excluding Contracts relating to consummate the Transactions or Parent’s ability indebtedness for borrowed money owed to own and/or conduct the business any member of the Company or any of its Subsidiaries after Trident Group that will be terminated prior to the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xivvi) provide for any Contract that relates to a material collective bargaining or similar labor Contract which covers any employees of Trident or its Affiliates engaged in work related to the outsourcing of Fountain Business, including any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsFountain Employees.
(b) All Contracts of the type described in this Section 2.09 and any other such Contracts that may be entered into by Trident or any Subsidiary of Trident after the date hereof and prior to the Effective Time in accordance with Section 4.01 are referred to herein as “Fountain Material Contracts.” As of the date of this Agreement, complete and correct copies (iincluding all material amendments, modifications, extensions or renewals with respect thereto) each of all Fountain Material Contracts existing as of the date of this Agreement have been provided to Patriot.
(c) Each Fountain Material Contract is a legal, valid and binding on the Company obligation of, and enforceable against, Trident or any Subsidiary of its Subsidiaries, to the extent such Person Trident that is a party thereto, as applicable, and, to the Knowledge of the CompanyTrident, each other party thereto, and is in full force and effecteffect in accordance with its terms, except where for (i) terminations or expirations at the failure end of the stated term in the ordinary course of business consistent with past practice or (ii) such failures to be validlegal, binding, valid and binding or to be in full force and effect as would not constitute reasonably be expected to have, individually or in the aggregate, a Material Adverse EffectFountain Business MAE, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting the enforcement of creditors’ rights generally and rules of Law governing specific performance, injunctive relief and other equitable remedies.
(iid) the Company Trident and each of its SubsidiariesSubsidiaries which is a party to any Fountain Material Contract is, and, as of the Fountain Distribution Date and the Effective Time, Fountain and each Fountain Sub which is a party to any Fountain Material Contract will be, in compliance with all terms and requirements of each Fountain Material Contract, and no event has occurred that, with notice or the passage of time, or both, would constitute a breach or default by Trident or any of its Subsidiaries or Fountain or any of its Subsidiaries (as the case may be) under any such Fountain Material Contract and, to the Knowledge of the CompanyTrident, any no other party theretoto any Fountain Material Contract is in breach or default (nor has any event occurred which, has performed all obligations required to be performed by it with notice or the passage of time, or both, would constitute such a breach or default) under each any Fountain Material Contract, except in each case where such noncompliance would not constitute a Material Adverse Effectviolation, (iii) neither the Company nor any breach, default or event of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectFountain Business MAE.
Appears in 2 contracts
Samples: Merger Agreement (Pentair Inc), Merger Agreement (Tyco International LTD)
Contracts. (a) Except for this Agreement Agreement, the Contribution, Assumption and each Contract filed Purchase Agreement, any Company Plans or as an exhibit to the Filed SEC Documents, set forth in Section 4.16(a3.16(a) of the Company Disclosure Letter sets forth a listSchedule, as of the date of this Agreement, neither the Company nor any of all Material Contracts. For purposes its Subsidiaries is a party to or expressly bound by, and none of their respective properties or assets is subject to, any Contract that
(i) is (x) a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act) or is (y) a Contract attached as an exhibit to a Current Report on Form 8-K filed by the Company with the SEC under which the Company or any of its Subsidiaries still has material rights or obligations;
(ii) relates to any joint venture, partnership, limited liability or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any joint venture, partnership or other similar arrangement;
(iii) is (x) an indenture, credit agreement, loan agreement, security agreement, guarantee, credit enhancement, note, mortgage or other Contract providing for or securing Indebtedness (other than capital lease obligations) of the Company or any of its Subsidiaries (in each case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $250,000 or (y) a capital lease obligation in excess of $1,000,000;
(iv) is (x) an Inbound License Agreement, (y) an Outbound License Agreement or (z) a Technology Agreement;
(v) is a settlement, conciliation or similar Contract with any Governmental Authority which (x) would require the Company or any of its Subsidiaries to pay consideration of more than $250,000 after the date of this AgreementAgreement or (y) would otherwise limit the operation of the Company (or Surviving Corporation or Parent or any of their respective Affiliates) in any material respect after the Closing;
(vi) limits the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of the Surviving Corporation or Parent or any of their respective Affiliates) (x) to engage in any line of business, to compete with any Person or operate at any geographic location, or to sell or supply any service (including any non-compete, exclusivity or “Material Contractmost-favored nation” means all Contracts provisions), or (y) to purchase or acquire an ownership interest in any other entity, or includes a covenant not to xxx a third party, except, in the case of (x) and (y), for any such Contract that may be canceled without penalty or other liability of the Company upon notice of ninety (90) days or less;
(vii) is a Contract under which the Company or any of its Subsidiaries is (w) a party lessee of real property, (x) a lessee of, or by which the Companyholds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third person or entity, (y) a lessor of its Subsidiariesreal property, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangementsz) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management lessor of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of tangible personal property owned by the Company or any of its Subsidiaries, in each case involving liabilities or obligations of (w), (x), (y) and (z), which requires future payments in excess of $10,000,000 1,000,000 per annum;
(viii) involves any directors, executive officers (as such term is defined in the Exchange Act) or five-percent stockholders of the Company or, to the Knowledge of the Company, any of its Affiliates (other than the Company) or immediate family members of any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)foregoing;
(vix) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of is a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) consulting agreement requiring the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 per annum or a third Person collective bargaining agreement;
(x) provides for (x) “earn-outs” or similar contingent payment obligations by the Company or any of its Subsidiaries or (y) a third Person to continuing indemnification obligations outside the ordinary course consistent with past practice by the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess case of $2,000,000, (x) and (y) other than commercially available any such Contract with respect to which there are no further obligations of more than $250,000 under such provisions;
(xi) was entered into after January 1, 2012, or has not yet been consummated, and involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of a business or capital stock or other equity interest of another Person or any assets or properties with a value of more than $250,000, excluding acquisitions or dispositions of equipment or other personal assets (other than any Vessels) in the ordinary course consistent with past practice;
(xii) (x) contains a standstill or similar provision pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of a third party, (y) contains any “offnon-thesolicitation”, “no hire” or similar provision which restricts the Company or any of its Subsidiaries from soliciting, hiring, engaging, retaining or employing such third party’s current or former employees in a manner or to an extent that would materially interfere with the business of the Company or any of its Subsidiaries or (z) contains a confidentiality obligation, except for (A) any agreement containing a confidentiality obligation entered into by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice and (B) any non-shelf” software licenses under which software is licensed to disclosure agreement entered into in connection with a potential sale of the Company or one or more of its businesses;
(xiii) prohibits the payment of dividends or distributions in respect of, or the pledging of, any equity interest of, or the issuance of guarantees by, the Company or any of its Subsidiaries;
(viiixiv) involve or could reasonably be expected involves a grant to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company Person of any right of first offer or right of first refusal to purchase, lease, sublease, use, possess or occupy any material penaltyassets, (y) any Company Lease, rights or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business properties of the Company or any of its Subsidiaries after the Effective TimeSubsidiaries;
(xxv) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity would be reasonably expected to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) involve aggregate payments by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultantSubsidiaries, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries, of more than $1,000,000 per annum, other than any xxxx of lading and any such Contract that may be canceled without penalty or other liability of the Company upon notice of thirty (30) days or less;
(xvi) involves any obligation to provide equity or debt financing to any Person (other than any Subsidiary of the Company that is not an Acquired Entity), or provide any guarantee or credit enhancement to, or assume any liability or obligation of, any Person (other than any Subsidiary of the Company that is not an Acquired Entity) in an amount in excess of $250,000; or
(xivxvii) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conductedwith a Governmental Authority, other than managing agency agreements (x) any xxxx of lading or managing general underwriting agreementsother one-time shipping Contracts or (y) any non-customer Contract for services provided to the Company in the ordinary course of business consistent with past practice that is not material to the Company’s business operations. Each Contract of the type described in this Section 3.16(a) is referred to herein as a “Company Material Contract.”
(b) As of the date of this Agreement, (i) each Each Company Material Contract is valid and binding on the Company or and any of its Subsidiaries, Subsidiaries to the extent the Company or such Person Subsidiary is a party thereto, as applicable, and, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where effect and enforceable in accordance with its terms (subject to the failure to be valid, binding, or in full force Bankruptcy and effect would not constitute a Material Adverse Effect, (ii) Equity Exception). Neither the Company and each nor any Subsidiary of its Subsidiaries, and, to the Company is in material breach of or material default under the terms of any Company Material Contract. To the Knowledge of the Company, any no other party thereto, has performed all obligations required to be performed by it any Company Material Contract is in material breach of or material default under each the terms of any Company Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event . No Event or condition has occurred that constitutes, or, after notice or lapse of time or both, will would constitute, a material default on the part of the Company or any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto under any such Company Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events nor has the Company or conditions that constitute, or, after any of its Subsidiaries received any notice or lapse of time or both, will constitute a default on the part of any counterparty under such material default, Event or condition.
(c) The Company has made available to Parent and Merger Sub complete and correct copies of each of the Company Material ContractContracts in effect as of the date hereof.
(d) Except as set forth on Section 3.16(d) of the Company Disclosure Schedule, except as would not constitute neither the Company nor any of its Subsidiaries is a Material Adverse Effectparty to or bound by any guarantee, performance bond, bid bond or other similar Contract in any amount relating to the Transferred Assets or the Transferred Liabilities, or guaranteeing any obligation, payment or performance of or by any of the Acquired Entities.
Appears in 2 contracts
Samples: Merger Agreement (Horizon Lines, Inc.), Merger Agreement (Matson, Inc.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of Neither the Company Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or nor any of its Subsidiaries is a party to or bound by any contract, agreement or other instrument or obligation (written or oral), other than those (x) identified in Section 3.13 (a) of the Company Disclosure Schedule or (y) under which neither the Company, Company nor any of its Subsidiaries, Subsidiaries has any remaining liabilities or any of their respective properties obligations (whether actual or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:contingent):
(i) are that is or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate relating to the formation or management incurring of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in an amount in excess of $300,000500,000 in the aggregate;
(xiiiii) constitute collective bargaining agreementswith any Affiliate of the Company (other than any such contract, agreement or other instrument or obligation (A) entered into with a Subsidiary which is a direct or indirect wholly owned Subsidiary of the Company, (B) that provides only for standard employee benefit generally made available to all employees of the Company and its Subsidiaries, (C) that provides only for purchase of shares of the Company’s common stock and/or the issuance of options to purchase shares of the Company’s common stock, in each case as approved by the Board of Directors of the Company or its Compensation Committee or (D) the Stockholder Agreement and other similar agreements executed in connection with the Transactions);
(xiiiiv) involve the provision of material thirdcontaining any non-party administration competition, exclusive dealing or other policy or claims administration services with respect to any Insurance Contractssimilar agreement, commitment, or investment management services obligation that has, or would reasonably be expected to result in, the Company effect of prohibiting or any of its Subsidiaries; or
(xiv) provide for impairing the outsourcing of any material function or part conduct of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of as currently conducted and as currently proposed to be conducted;
(v) under which the Company and its Subsidiaries as currently conductedor any Subsidiary is now, other than managing agency agreements or managing general underwriting agreements.
following the Effective Time Parent or any of Parent’s Affiliates (b) As of the date of this Agreement, (i) each Material Contract is valid and binding on including without limitation the Company or any of its Subsidiaries) would be, restricted from selling, licensing or otherwise distributing any of their respective 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;
(vi) containing a “most favored nation” clause or other term providing preferential pricing or treatment to a third party other than pricing discounts given to customers in the ordinary course of business consistent with past practice;
(vii) under which a third party would be entitled to receive a license or any other right to intellectual property of Parent or any of Parent’s Affiliates following the Closing;
(viii) providing for any payments that are conditioned, in whole or in part, on a change of control of the Company or any of its Subsidiaries;
(ix) providing a license to any third party for the right to use or reproduce any Company Intellectual Property except agreements with customers or other end-user customers of the Company or any of its Subsidiaries entered into in the ordinary course of business consistent with past practice;
(x) providing licenses, sublicenses or other agreements pursuant to which the Company or any of its Subsidiaries is authorized to use any third party Intellectual Property that is material to Company and its Subsidiaries, taken as a whole, excluding any non-exclusive, generally commercially available, off-the-shelf software programs;
(xi) pursuant to which the Company or any of its Subsidiaries leases any real property to or from a third party; or
(xii) relating to the extent such Person manufacturing or supply of any material item used by the Company or a Subsidiary that is a single or sole source of manufacturing or supply. (such contracts set forth in Section 3.13(a) of the Company Disclosure Schedule, otherwise described in clauses (i) through (xii), or set forth in the exhibit index of the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2007, the “Company Material Contracts”). Complete and accurate copies of all Company Material Contracts have heretofore been furnished to Parent. Neither the Company nor any of its Subsidiaries has entered into any transaction with any Affiliate of the Company or any of its Subsidiaries or any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K that has not been disclosed in a Company SEC Document.
(b) Except as would not have a Material Adverse Effect: (i) neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a breach of or default under); and (ii) to the Knowledge of the Company, no other party theretoto any Company Material Contract is in breach of or default under the terms of any Company Material Contract (nor does there exist any condition which, as applicableupon the passage of time or the giving of notice or both, would cause such a breach of or default under). Each Company Material Contract is a valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto and, to the Knowledge of the Company, of each other party thereto, and is in full force and effect, except where the failure that: (A) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to creditors’ rights generally; and (B) equitable remedies of specific performance and injunctive and other forms of equitable relief may be valid, binding, or in full force subject to equitable defenses and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge discretion of the Company, court before which any other party thereto, has performed all obligations required to proceeding therefor may be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectbrought.
Appears in 2 contracts
Samples: Merger Agreement (Nextest Systems Corp), Merger Agreement (Teradyne, Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) 3.18 of the Company Seller’s Disclosure Letter sets forth contains a list, as of the date of this Agreementhereof, of all Contracts (other than Employee Benefit Plans and other than any Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts that are Excluded Assets) related to the FH Business to which the Company Seller or any of its Subsidiaries Affiliates is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound bound, and that fall within any of the following categories (the “Material Contracts”):
(a) each Contract with a Key Customer (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are any such contract which is terminable by a Transferred FH Company, a Closing Subsidiary of a Transferred FH Company or would be required to be filed by an FH Affiliate (in respect of the Company FH Business), as a “applicable, without material contract” pursuant to Item 601(b)(10liability, penalty or premium on 90 or fewer days’ notice and (ii) purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in the ordinary course of Regulation S-K under the Securities Actbusiness);
(b) each Contract with a Key Supplier (other than (i) any such contract which is terminable by a Transferred FH Company, Closing Subsidiary of a Transferred FH Company or FH Affiliate (in respect of the FH Business), as applicable, without material liability, penalty or premium on 90 or fewer days’ notice and (ii) relate to purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in the formation or management ordinary course of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a wholebusiness);
(iiic) provide for Indebtedness each Contract which limits the ability, in any material respect, of the (i) a Transferred FH Company or any of its Closing Subsidiaries having or an outstanding or committed amount equal FH Affiliate (in respect of the FH Business) to compete with any Person generally or in excess of $10,000,000, other than any Indebtedness between geographic area in which any Transferred FH Company or among any Closing Subsidiary thereof or an FH Affiliate (in respect of the Company and any of its Subsidiaries;
FH Business) conducts the FH Business, or (ivii) are any keepwell or similar agreement under which the a Transferred FH Company or any of its Closing Subsidiaries has directly guaranteed or any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations FH Affiliate (in respect of the Company FH Business) from entering into any line of business, or from freely providing services or supplying products to any of its Subsidiariescustomer or potential customer, or in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary part of the Company)world;
(vd) have been each material Transferred IP Contract, other than non-disclosure agreements, employee invention assignments, customer end user agreements, “clickwrap”, “shrinkwrap,” open source or similar Contracts for generally commercially available computer software, firmware or data, and similar agreements entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business with annual license fees of less than $100,000;
(e) each Contract that would reasonably be expected to result in payments to or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the from a Transferred FH Company or any of its SubsidiariesClosing Subsidiaries or an FH Affiliate (in respect of the FH Business) in excess of $2,000,000 (or the equivalent value in the applicable currency) over any consecutive 12-month period including the date hereof;
(f) each (A) consulting agreement (other than those that are terminable on no more than thirty (30) days’ prior notice and that provide for a termination fee of less than $50,000), (B) change of control, retention or severance agreement or arrangement or (C) employment agreement, in the case of each of clauses (A) and (C), which (x) provides for mandatory annual cash compensation in excess of $200,000 or (y) includes any bonus or other amount payable in connection with the transactions contemplated hereby;
(g) each Contract for the disposition of FH Assets in excess of $1,000,000 over any consecutive 12-month period including the date hereof (other than sales of products in the ordinary course of business) or for the acquisition of the assets or business of any other Person in excess of $1,000,000 over any consecutive 12-month period including the date hereof (other than purchases of inventory or components in the ordinary course of business);
(vih) prohibit each contract in which Seller or any of its Affiliates has granted “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 in excess of $1,000,000 or has agreed to purchase goods or services exclusively from a specified person (or group of persons);
(i) each Contract concerning the payment establishment or operation of dividends a partnership, joint venture or distributions similar enterprise;
(j) each Government Contract (other than purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in respect the ordinary course of business);
(k) any settlement agreement or settlement-related agreement that contains material ongoing restrictions on the operation of the shares FH Business (including any agreement in connection with which any employment-related claim is settled);
(l) any agency, distributor, sales representative, franchise or capital stock similar agreements with an agent, distributor, sales representative, franchisor or similar service provider outside of the United States that cannot be terminated by the applicable Transferred FH Company, Closing Subsidiary or FH Affiliate on less than 90 days’ notice without material Liability to such Person;
(m) each Contract (other than any Contract included in the Acquired FH Assets) that, following the Closing, would (or would purport to) entitle any third party to receive a license or any other right to Intellectual Property of Buyer or any of Buyer’s Affiliates (other than the Transferred FH Companies and the Closing Subsidiaries) following the Closing or otherwise would bind or purport to bind Buyer or any of Buyer’s Affiliates (other than any Transferred FH Company or any of its Closing Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;); and
(viin) restrict each letter of credit, bank guarantee, performance bond or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiariessimilar instrument, in each case, for aggregate annual or one-time fees in any amount in excess of $2,000,000100,000 individually, other than commercially available “off-the-shelf” software licenses under which software is licensed to issued for the benefit of any Transferred FH Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including Closing Subsidiary. Each such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid legal, valid, binding and binding on the Company enforceable against Seller or any of its Subsidiaries, to the extent such Person is a party theretoAffiliate, as applicable, and, to the Knowledge of Seller, the Companyother parties thereto in accordance with its terms, in each other party theretocase, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and is in full force and effect, except where the such failure to be so valid, binding, enforceable or in full force and effect would not constitute a Material Adverse Effectnot, (ii) individually or in the Company and each of its Subsidiariesaggregate, and, reasonably be expected to be material to the Knowledge of the CompanyFH Business, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute taken as a Material Adverse Effect, (iii) neither the Company whole. Neither Seller nor any of its Subsidiaries has received notice of the existence Affiliates is in default under or in breach of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, Contract except for such defaults or breaches as would not have, individually or in the aggregate, reasonably be expected to be material to the FH Business, taken as a whole. To the Knowledge of Seller, no event has occurred which, after the giving of notice, with lapse of time, or otherwise, would constitute a Material Adverse Effectany such default or breach.
Appears in 2 contracts
Samples: Purchase Agreement (Colfax CORP), Purchase Agreement (Circor International Inc)
Contracts. (a) Except for this Agreement and each Each Material Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries Subsidiary is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party theretoagreement, and is in full force and effecteffect in all material respects (subject to applicable bankruptcy, except where insolvency, reorganization, moratorium or other laws affecting generally the failure enforcement of creditors’ rights and subject to be validgeneral principles of equity), binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) neither the Company and each of its Subsidiariesnor any Subsidiary, andas applicable, nor, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it is in material breach or default (whether with or without the passage of time or the giving of notice or both) under each the terms of any such Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither . Neither the Company nor any Subsidiary has assigned, delegated, or otherwise transferred any of its rights or obligations with respect to any Material Contracts. The Company and each Subsidiary has made available to Parent and Purchaser a true and correct copy of each Material Contract listed on Schedule 3.19(b).
(b) Schedule 3.19(b) lists each Contract of the Company and its Subsidiaries of the type described below (collectively, the “Material Contracts”):
(i) any Contract pursuant to which the Company or any Subsidiary is required to pay, has paid or is entitled to receive or has received notice an amount in excess of $100,000 during the existence current fiscal year (other than purchase orders for Inventory entered into in the ordinary course of any event business);
(ii) all employment contracts and sales representatives contracts pursuant to which an employee or condition that constitutesa sales representative is entitle to receive annual compensation in excess of $100,000;
(iii) all sales, oragency, after notice factoring, commission and distribution contracts in excess of $100,000 annually;
(iv) all joint venture, strategic alliance and partnership agreements;
(v) all licensing agreements, including agreements licensing Intellectual Property rights, other than “shrink wrap” or lapse of time or both“click wrap” software licenses;
(vi) all secrecy, will constitute, a default on confidentiality and nondisclosure agreements restricting the part ability of the Company or any Subsidiary to freely engage in the Business in any respect;
(vii) all Contracts relating to patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and other Intellectual Property rights;
(viii) all guarantees, privacy policies and indemnification arrangements made or provided by the Company or any Subsidiary (other than Contracts entered into in the ordinary course of its Subsidiaries under business);
(ix) all Website hosting contracts or agreements;
(x) all agreements relating to real property, including any Material Contractreal property lease, except where such default would not constitute a Material Adverse Effectsublease, and or space sharing, license or occupancy agreement, whether the Company is granted or is granting rights thereunder to occupy or use any premises; and
(ivxi) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectall agreements relating to outstanding Indebtedness.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Kline Hawkes Pacific Advisors, LLC), Stock Purchase Agreement (Vector Intersect Security Acquisition Corp.)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a listSchedule 4.24 lists, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which and that fall within any of the following categories:
(a) Contracts not entered into in the ordinary course of the Company, any of 's and its Subsidiaries' business other than those that are not material to the Company's or its Subsidiaries' business;
(b) joint venture, partnership and similar agreements;
(c) Contracts containing covenants purporting by their express terms to limit the freedom of the Company or its Subsidiaries to compete in any line of their respective properties business in any geographic area or assets is bound to hire any individual or group of individuals;
(d) Contracts that, after the Effective Time, would have the effect of limiting the freedom of Parent or its Subsidiaries (other than the Company Plans and insurance, reinsurance, its Subsidiaries) to compete in any line of business in any geographic area or retrocession treaties to hire any individual or agreements, slips, binders, cover notes, group of individuals;
(e) Contracts with any labor organization or union;
(f) Contracts providing for "earn-outs," "savings guarantees," "performance guarantees" (other than performance guarantees for wholly owned Subsidiaries of the Company) or other similar arrangements) that:
(i) are or would be required to be filed contingent payments by the Company or its Subsidiaries involving more than $50,000 over the term of the Contract; and
(g) Contracts involving payments to or by the Company and its Subsidiaries taken as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnershipwhole, or other similar agreement that is material which are reasonably likely to result in the business of incurrence by the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness , of the Company or any liabilities, of its Subsidiaries having an outstanding or committed amount equal to or in excess of at least $10,000,000, other than any Indebtedness between or among any of the Company 5,000,000 per year. All such Contracts are valid and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or binding obligations of the Company or any of its Subsidiaries, in each as the case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which may be, and, to the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary knowledge of the Company);
(v) have been entered into since January 1, 2017the valid and binding obligation of each other party thereto, except such Contracts that, if not so valid and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected tobinding, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability have not had and could not reasonably be expected to consummate the Transactions or Parent’s ability to own and/or conduct the business of have a Company Material Adverse Effect. Neither the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, andnor, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge knowledge of the Company, any other party thereto, is in violation of or in default in respect of, nor has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any there occurred an event or condition condition, that constitutes, or, after notice or lapse with the passage of time or both, will constitute, a default on the part giving of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and notice (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both), will would constitute a default on under or permit the part of termination of, any counterparty such Contract except such violations or defaults under such Material Contractor terminations that, except as would individually or in the aggregate, have not constitute had and could not reasonably be expected to have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Andrew Corp), Agreement and Plan of Merger (Allen Telecom Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a4.14(a) of the Company Disclosure Letter sets forth a listSchedule lists, as of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
each Contract that (i) are or is of a type that would be required to be filed by with the Company SEC as a “material contract” an exhibit to the SEC Documents pursuant to Paragraph (2), (4) or (10) of Item 601(b)(10601(b) of Regulation S-K under the Securities Act, or (ii) is of a type described below:
(i) any Contract (x) to which the Company or any of the Company Subsidiaries is a party relating to indebtedness for borrowed money in excess of $50,000 or (y) pursuant to which the Company or any of the Company Subsidiaries is a guarantor of any indebtedness for borrowed money in excess of $50,000;
(ii) relate to the formation or management of any joint ventureContract, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company whether by lease or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000similar agreement, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its the Company Subsidiaries has directly guaranteed is the lessor of, or makes available for use by any liabilities or obligations of another Person or under which another Person has directly guaranteed third Person, any liabilities or obligations of tangible personal property owned by the Company or any of its Subsidiaries, in each case involving liabilities or obligations the Company Subsidiaries for an annual rent in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business10,000, in each case, for aggregate consideration under such ;
(iii) any Contract in excess relating to any outstanding loan or advance by the Company or any of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment GuidelinesCompany Subsidiaries to, or investment by the Company or any of suppliesthe Company Subsidiaries in, products, properties, or other assets any Person (excluding trade receivables and advances to employees for normally incurred business expenses each arising in the ordinary course of business consistent with past practice);
(iv) any partnership, joint venture or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of profit sharing agreement with any Person;
(v) any Contract to which the Company or any of its the Company Subsidiaries is a party granting a right of first refusal, right of first offer or similar preferential right to purchase or acquire any of the Company’s or any of the Company Subsidiaries)’ capital stock or assets;
(vi) prohibit any Contract for the payment purchase, sale, exchange, disposition, gathering, treatment, processing, refining, handling, storage or transportation of dividends Hydrocarbons that is not terminable without penalty upon sixty (60) calendar days’ notice or distributions in respect less;
(vii) any Contract for the use or sharing of drilling rigs;
(viii) any Contract for purchase, farmin or farmout agreement, exploration agreement, participation agreement, agreement of development or similar agreement providing for the shares or capital stock earning of an ownership interest;
(ix) any Contract to which the Company or any of its Subsidiaries, prohibit the pledging of the shares Company Subsidiaries is a party with respect to any partnership entity or capital stock of other joint venture entity in which the Company or any Company Subsidiary of has an ownership interest (other than a Contract solely between the Company or prohibit a Company Subsidiary, on the issuance of one hand, and one or more Company Subsidiaries, on the other hand);
(x) any guarantee by Contract pursuant to which the Company or any Subsidiary of the Company Subsidiaries has an option or right to purchase the assets or securities of another Person;
(xi) any Contract between the Company or any of the Company Subsidiaries and any employee, officer, director or consultant thereof, or between the Company and any Affiliate of the Company;
(viixii) restrict or grant rights any Contract related to use or practice rights under material Intellectual Propertyareas of mutual interest;
(xiii) any Contract related to the operation, including agreements providing for the creation exploration or development of material Intellectual Property or access any Oil and use Gas Interests of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (zxiv) any Contract with financial advisorsany owner of subsurface rights other than Oil and Gas Interests, investment bankers, attorneys, accountants, consultants, or other advisors in connection including owners of rights with the Transactionsrespect to coal;
(ixxv) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit Contract between the Company or any of its Affiliates and any third party operator of any xxxxx, production from competing in which is holding any material line of business or grant a right the Oil and Gas Interests of exclusivity to any Person that prevents the Company or any Affiliate of Company Subsidiary;
(xvi) any Contract relating to the Company from entering any material territory, market, disposition or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) acquisition by the Company or any of its the Company Subsidiaries on less than ninety after the date of this Agreement of assets having a book value or fair market value in excess of $100,000;
(90xvii) days’ notice without payment any Contract relating to any outstanding commitment for capital expenditures in excess of $100,000;
(xviii) any Contract containing provisions applicable upon a change of control of the Company or any of the Company Subsidiaries;
(xix) any Contract with former or present directors or officers;
(xx) any confidentiality or standstill agreements with any Person that restrict the Company or any of the Company Subsidiaries in the use of any information or the taking of any actions that were entered into in connection with the consideration by the Company or any Subsidiary of the Company Subsidiaries of any material penaltyacquisition of assets or equity securities;
(xixxi) any Contract to which the Company or any of the Company Subsidiaries is a party which involve payments by or to a third party of more than $50,000 during the retention of fiscal year ending December 31, 2016 or which could reasonably be expected to involve such payments during the fiscal year ending December 31, 2016;
(xxii) any independent contractormortgages, consultantindentures, guarantees, loans or agency for the provision of services credit agreements, security agreements or other agreements or instruments relating to the Company with annualized fees borrowing of money or extension of credit involving amounts in excess of $300,000100,000;
(xiixxiii) constitute collective bargaining agreementsany non-competition agreement or any Contract that purports to restrict, limit or prohibit the manner in which, or the localities in which, the Company or the Company Subsidiaries conduct their business;
(xiiixxiv) involve any Contract between the provision Company or any of material third-party administration the Company Subsidiaries on the one hand, and Republic or any of its Affiliates, on the other hand;
(xxv) any Contract expressly limiting or restricting the ability of the Company or any of the Company Subsidiaries (A) to make distributions or declare or pay dividends in respect of their capital stock or other policy or claims administration services with respect equity interests, (B) to any Insurance Contracts, or investment management services make loans to the Company or any of its Subsidiaries; or
the Company Subsidiaries or (xivC) provide for to grant Liens on the outsourcing of any material function assets or part of the business property of the Company or any of its Subsidiaries that is necessary the Company Subsidiaries;
(xxvi) any financial risk management Contract, including currency, commodity or interest related derivative or hedge Contracts in excess of $100,000 in the aggregate;
(xxvii) except for Contracts the conduct subject matter of which are subject to any of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, clauses (i) each Material through (xxvi) above, any Contract is valid and binding on involving payments by or to the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each Subsidiaries in excess of its Subsidiaries, $100,000; and, to the Knowledge of the Company,
(xxviii) any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of Contract which commits the Company or any of its the Company Subsidiaries under to enter into any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectforegoing.
Appears in 2 contracts
Samples: Merger Agreement (EQT Corp), Agreement and Plan of Merger (Trans Energy Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as As of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which neither the Company or nor any of its Subsidiaries Company Subsidiary is a party to or bound by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) Contract that:
(i) are or would be is required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10601(b) of Regulation S-K under the Securities ActAct (other than any Company Benefit Plan);
(ii) relate relates to the formation or management of any partnership, joint venture, partnershipco-investment, limited liability, strategic alliance or other similar agreement that is material to involving the business Company or any of the Company Subsidiaries (other than any such agreement solely between or among the Company and its the Company Subsidiaries, taken as a whole);
(iii) provide for Indebtedness 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 Company or any of the Company Subsidiaries (or, after giving effect to the Merger, Parent or its Subsidiaries) may engage, the terms or conditions the Company or any of the Company Subsidiaries (or, after giving effect to the Merger, Parent or its Subsidiaries) can offer to any other Person, or the geographic area in which the Company or any of the Company Subsidiaries (or, after giving effect to the Mergers, Parent or its Subsidiaries) may so engage;
(iv) provides for the acquisition or disposition by the Company or any Company Subsidiary of any properties or assets (except for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business consistent with past practice), in each case with a fair market value in excess of $15,000,000;
(v) involves any pending or contemplated merger, consolidation or similar business combination transaction;
(vi) by its terms obligates the Company or any of the Company Subsidiaries to make expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) or entitles the Company or any of the Company Subsidiaries to payments (A) in excess of $10,000,000 in any 12 month period or (B) in excess of $50,000,000, in the aggregate over the term of such Contract; provided that expenditures and payments under hardware reseller arrangements will be measured on a net basis; provided further that customer Contracts entered into in the ordinary course of business are not required to be scheduled until 45 calendar days after the date of this Agreement;
(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 of the Company Subsidiaries or (B) the payment of any cash or other consideration having an outstanding a value, in each case, of more than $1,000,000;
(viii) contains a standstill or committed amount equal similar Contract pursuant to which the Company or any of the Company Subsidiaries has agreed not to acquire assets or securities of any other Person;
(ix) was entered into with any of the Company Subsidiaries or any other Person in which the Company holds, directly or indirectly, any equity 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 such equity interests in such Person;
(x) evidences a capitalized lease obligation in excess of $10,000,000, or that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage, suretyship, “keep well” or other than agreement providing for or guaranteeing indebtedness of any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company surety or a Subsidiary has guaranteed the liabilities performance bonds, letters of credit or obligations of a wholly owned Subsidiary of the Company);
(v) have been similar agreements entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business 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 of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business Company Subsidiaries;
(xi) contains restrictions on the ability of the Company or any of its Subsidiariesthe Company Subsidiaries to pay dividends or other distributions (other than pursuant to the Company Articles and the Company Regulations);
(vixii) prohibit the payment of dividends contains a put, call or distributions in respect of the shares or capital stock of similar right pursuant to which the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company Subsidiaries could be required to purchase or sell, as applicable, any Subsidiary of the Company or prohibit the issuance equity interests of any guarantee by the Company Person or any Subsidiary assets that have a fair market value or purchase price of the Companymore than $5,000,000, or constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a hedging transaction;
(viixiii) restrict is (A) material license (by or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any Company Subsidiary), covenant not to xxx, escrow, or other Contract that grants rights in or to any material Intellectual Property rights and (B) an exclusive license or other Contract affecting the Company’s or any of its the Company Subsidiaries’ ability to disclose, own, enforce, use, or license any material Intellectual Property (provided, however, that the following are not required to be scheduled but shall constitute Material Contracts solely for purposes of Section 4.14(b) and the last sentence of Section 4.14(c) if they otherwise qualify: (w) non-exclusive licenses granted to customers in each casethe ordinary course of business consistent with past practice; (x) non-exclusive licenses implied by the sale of a product and (y) licenses of commercially available, for aggregate annual or one-time fees in excess of $2,000,000unmodified, other than commercially available “off-the-shelf” software licenses under which software is shelf Software licensed pursuant to the Company click-through, click-wrap, or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of standard terms and conditions for less than $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiariesannually); or
(xiv) provide for would prohibit or materially delay the outsourcing of any material function or part consummation of the business of Merger or the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, Transactions. Each such Contract described in clauses (i) each Material Contract through (xiv) above is valid and binding on the Company or any of its Subsidiaries, referred to the extent such Person is herein as a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each “Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect”.
Appears in 2 contracts
Samples: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to To the Filed SEC Documents, Section 4.16(a) best of the Company Disclosure Letter Company's knowledge, Schedule 3.11 sets forth a list, as complete and accurate list of any of the date of this Agreement, of following (including all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts amendments and/or modifications to the following) to which the Company or any of its Subsidiaries subsidiaries is a party or by which the Company, Company or any of its Subsidiaries, or any of their respective properties or assets subsidiaries is bound (other than Company Plans and insurancecollectively, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:"Scheduled Contracts"):
(i) are all deeds, indentures, leases, subleases or would be required to be filed other instruments by which an ownership, leasehold or other interest in real property is held by the Company as a “material contract” pursuant to Item 601(b)(10) or any of Regulation S-K under the Securities Actits subsidiaries;
(ii) relate all contracts, commitments or agreements, including contracts or licenses pertaining to the formation payment of royalties, to the extent that any such agreement individually includes provisions that do or management could involve payments or commitments (whether fixed or contingent) to or from the Company or any of any joint venture, partnershipits subsidiaries for a fixed amount, or other similar agreement that is material to the business a reasonably expected amount, in excess of the Company and its Subsidiaries, taken as a whole$100,000;
(iii) provide for Indebtedness all management, compensation, employment or severance contracts, commitments or agreements or contracts or agreements entered into with any director, officer or employee of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiariessubsidiaries;
(iv) are any keepwell all contracts or similar agreement agreements under which the Company or any of its Subsidiaries subsidiaries has directly guaranteed any liabilities outstanding indebtedness, obligation or obligations liability for borrowed money or the deferred purchase price of another Person property or under has the obligation to incur any such indebtedness, obligation or liability, in each case in an amount greater than $100,000;
(v) all bonds or agreements of guarantee or indemnification in which another Person has directly guaranteed the Company or any liabilities of its subsidiaries acts as surety, guarantor or obligations indemnitor with respect to any individual obligation (fixed or contingent) in a fixed amount or a reasonably expected amount greater than $100,000; and
(vi) all secrecy, noncompete or other agreements which (A) restrict the right of the Company or any of its Subsidiaries, subsidiaries to engage in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or (B) would restrict the right of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company Parent or any of its Subsidiaries);
(vi) prohibit affiliates to engage in any business after the payment of dividends or distributions in respect consummation of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee transactions contemplated by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement; Except as set forth on Schedule 3.11, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of subsidiaries is in default under the existence terms of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Scheduled Contract, except where such (ii) no other party thereto is in default would not constitute a Material Adverse Effect, under the terms of any Scheduled Contract and (iviii) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such each Material Contract, except as would not constitute a Material Adverse EffectContract is in full force and effect.
Appears in 2 contracts
Samples: Merger Agreement (Toastmaster Inc), Merger Agreement (Salton Maxim Housewares Inc)
Contracts. (a) Except (i) for this Agreement and each Contract Agreement, (ii) for the Contracts filed as an exhibit exhibits to the Company SEC Documents filed prior to the date of this Agreement (a “Filed SEC DocumentsCompany Contract”) and (iii) for the Company Benefit Plans and Company Leases, Section 4.16(a) 4.14 of the Company Disclosure Letter sets forth a listforth, as of the date of this Agreement, a true and complete list of all Material Contracts. For purposes of this Agreement, “Material Contract” means all the following Contracts to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatparty:
(i) are or would be required to be filed by the Company as a each “material contract” pursuant to (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act);
(ii) relate to the formation or management of any joint ventureeach agreement, partnershipContract, understanding, or other similar agreement that is material undertaking to which the business Company or any of the Company and its SubsidiariesSubsidiaries is a party that restricts in any material respect the ability of the Company or any of the Company Subsidiaries to compete in any business or with any Person in any geographical area, taken as a wholeexcept if terminable by the Company or any Company Subsidiary on no more than 90 days’ notice without penalty;
(iii) provide for each loan and credit agreement, debenture, bond, indenture, mortgage, security agreement, or other similar Contract, including each promissory note not issued pursuant to the Company’s existing revolving credit facility, relating to Indebtedness of the Company or any of its the Company Subsidiaries having with an aggregate outstanding or committed principal and interest amount equal to or in excess of $10,000,0001,000,000 individually, other than any Indebtedness such agreement solely between or among any of the Company and any of its the wholly owned Company Subsidiaries;
(iv) are any keepwell each partnership, joint venture or similar agreement under agreement, Contract, understanding or undertaking to which the Company or any of its the Company Subsidiaries has directly guaranteed is a party relating to the formation, 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 Company Subsidiaries, in each case material to the Company and the Company Subsidiaries, taken as a whole, other than any such agreement solely between or among the Company and the wholly owned Company Subsidiaries;
(v) each Contract with (x) any member of the Company Board or (y) any Section 16 officer of the Company, in each case other than those Contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents or Contracts terminable by the Company or any of the Company Subsidiaries on no more than 30 days’ notice without liability or financial obligation to the Company or any of the Company Subsidiaries;
(vi) each agreement, Contract, understanding or undertaking relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any business or any amount of assets for consideration in excess of $1,000,000, with obligations remaining to be performed or liabilities continuing after the date of this Agreement;
(vii) each material hedge, collar, option, forward purchasing, swap, derivative, or obligations similar Contract;
(viii) each agreement, Contract, understanding or undertaking (A) pursuant to which the Company or any of another Person the Company Subsidiaries is granting or under which another Person has directly guaranteed being granted any liabilities material Intellectual Property License (other than the Company’s or obligations the Company Subsidiaries’ standard customer Contracts or standard license Contracts for “off the shelf” generally available Software or software-as a service platforms or standard Contracts for information technology services that include non-exclusive Software or Technology licenses); (B) that materially limits or restricts the right of the Company or any of its Subsidiariesthe Company Subsidiaries to enforce, in each case involving liabilities transfer, license, register or obligations in excess practice any right under any of $10,000,000 the material Company-Owned Intellectual Property Rights (other than any contracts under which the Company’s or the Company Subsidiaries’ standard customer Contracts); or (C) that contains an agreement for the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary any of the Company);
Company Subsidiaries to indemnify any other Person against any claim of infringement, unauthorized use, misappropriation, dilution or violation of Intellectual Property Rights (v) have been except for customer Contracts entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in standard license Contracts for “off the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company generally available Software or any of its Subsidiaries;
(viiisoftware-as-a-service platforms) involve or could reasonably be expected to involve aggregate payments standard Contracts for information technology services that include non-exclusive Software or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the TransactionsTechnology licenses;
(ix) would reasonably be expected toany agreements, understandings or arrangements granting “most favored nations” or similar terms to another Person and pursuant to such Contract the Company or any Company Subsidiary received during the period ended December 31, 2015 more than $1,000,000; and
(x) any Company Government Contract with annual aggregate payments to the Company and the Company Subsidiaries under such master agreement for at least $5,000,000. Each agreement, Contract, understanding or undertaking of the type described in this Section 4.14(a) and each Filed Company Contract is referred to herein as a “Material Contract.” The Company has made available to Parent true, correct and complete copies of all Material Contracts.
(b) Except for matters which, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability have not had and would not reasonably be expected to consummate the Transactions or Parent’s ability to own and/or conduct the business of the have a Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this AgreementMaterial Adverse Effect, (i) each Material Contract is valid a valid, binding and binding on legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, except, in each case, as enforcement may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity, (ii) each such Material Contract is in full force and effect, and (iii) none of the Company or any of its Subsidiariesthe Company Subsidiaries is (with or without notice or lapse of time, to the extent or both) in breach or default under any such Person is a party thereto, as applicable, Material Contract and, to the Knowledge of the Company, each no other party to any such Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder.
(c) Except to the extent permitted by Section 5.01(b)(viii) and for any Filed Company Contracts, neither the Company nor any of the Company Subsidiaries are parties to or bound by any loan agreement, credit agreement, note, debenture, bond, indenture, mortgage, security agreement, pledge, capital or financing method leases or other similar agreement that prevents or restricts the Company, any Company Subsidiary or any direct or indirect Subsidiary thereof from (i) paying dividends or distributions to the Person or Persons who owns such entity, (ii) incurring or guaranteeing Indebtedness or (iii) creating Liens that secure Indebtedness.
(d) Within the past six years, neither the Company nor any of the Company Subsidiaries has (i) breached or violated in any material respect any Law, certification, representation, clause, provision or requirement pertaining to any Company Government Contract; (ii) been suspended or debarred from bidding on government contracts by a Governmental Entity; (iii) been audited or investigated by any Governmental Entity with respect to any Company Government Contract; (iv) conducted or initiated any internal investigation or made any disclosure, nor has any Governmental Entity made any finding, with respect to any alleged or potential material irregularity, misstatement, omission or overpayment arising under or relating to a Company Government Contract; (v) received from any Governmental Entity or any other Person any written notice of any material breach, cure, set-off, show cause or default with respect to any Company Government Contract; (vi) had any Company Government Contract terminated by any Governmental Entity or any other Person for default or failure to perform; or (vii) violated any laws regarding post-employment conflicts of interest for federal officials. To the Knowledge of the Company, all claims submitted by the Company or any Company Subsidiary within the past six years pursuant to a Company Government Contract were current, accurate and complete in all material respects as of their effective date. To the Knowledge of the Company, each Company Government Contract has been legally awarded, is binding on the parties thereto, and is in full force and effecteffect in accordance with its terms. The Company has complied in all material respects with all Laws, except where the failure regulations and other governmental policies related to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events Company Subsidiary facility security clearance or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectpersonnel security clearance.
Appears in 2 contracts
Samples: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(aSchedule 5.12(a) of the Company Disclosure Letter sets forth a list, as list of all of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all following Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound as of the date hereof (collectively, the “Significant Contracts”):
(i) each Contract that relates to employment or severance between the Company or any of its Subsidiaries (other than Contracts relating to employment that are required under applicable local Laws and contain customary terms for such jurisdiction) and (A) any of their respective officers or directors, or (B) other employees of the Company or any of its Subsidiaries who are entitled to an annual base salary in excess of one hundred and fifty thousand dollars ($150,000) per annum;
(ii) each Contract with any labor union or association representing any employee of the Company or any of its Subsidiaries;
(iii) each Contract relating to the sale of any of the assets of, or the provisions of any services by, the Company or any of its Subsidiaries (other than the sale or provision of goods and services in the Ordinary Course of Business) for consideration in excess of $100,000 during the twelve-month period ending on the date hereof or the equivalent in other currencies;
(iv) each Contract entered into during the three-year period ending on the date hereof relating to the acquisition or disposition by the Company or any of its Subsidiaries of any business, division or product line or the capital stock of any other Person, in each case (A) for consideration in excess of $250,000 or the equivalent in other currencies, (B) pursuant to which any liabilities or obligations of the Company or its Subsidiaries remain outstanding, or (C) providing for “earn-outs,” “performance guarantees” or other similar contingent purchase price payments by the Company or any of its Subsidiaries remain outstanding;
(v) each Contract providing for the incurrence of outstanding Indebtedness as of or after the date hereof or the making of any outstanding loans as of or after the date hereof (other than routine advances for business expenses and relocation expenses in accordance with the Company’s policies in the Ordinary Course of Business in an amount not exceeding $25,000 to any individual employee);
(vi) each Contract creating or governing a partnership, limited liability company, joint venture, teaming arrangement, the sharing of profits or expenses, or other similar arrangement (other than Subsidiary Charter Documents, arrangements between the Company and/or its Subsidiaries and Contracts entered into in the Ordinary Course of Business whereby the Company receives or shares commissions or other compensation);
(vii) each Contract with a Significant Customer (A) containing a covenant expressly limiting the freedom of the Company or any of its Subsidiaries to engage in any business with any Person or in any geographic area or to compete with any Person or (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party;
(viii) each Contract creating a Lien (other than Permitted Exceptions) upon any assets of the Company or any of its Subsidiaries, other than purchase money security interests in connection with the acquisition of equipment in the Ordinary Course of Business;
(ix) each Contract reflecting a settlement of any threatened or pending Legal Proceedings, other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company and its Subsidiaries in the Ordinary Course of Business in connection with the routine cessation of such employee’s or independent contractor’s employment or service with the Company and its Subsidiaries, (B) settlement agreements for cash only (which has been paid) and does not exceed $250,000 as to such settlement or (C) settlement agreements entered into more than five (5) years prior to the date of this Agreement under which none of the Company or its Subsidiaries have any material continuing obligations, liabilities, or rights (excluding releases);
(x) each Contract with a Significant Customer;
(xi) any distributor, sales, reseller, advertising, agency, original equipment manufacturing, sales representative, data center, web hosting, co-location, joint marketing or joint development Contract that involves aggregate costs in excess of their respective properties $250,000;
(xii) Contracts with a Significant Customer granting such Significant Customer a first refusal, first offer, “most favored customer” pricing or assets is bound licensing arrangement or similar right or arrangement to purchase or acquire any right, asset, service or property of the Company.
(xiii) each Contract granting any power of attorney;
(xiv) each Contract relating to the guaranty of any obligation for borrowed money and each letter of credit, performance bond, bankers acceptance or other guaranty of an obligation in excess of $100,000; and
(xv) each Contract providing for the indemnification of any Person (other than (x) Customer License Agreements and other Contracts with customers entered into in the Ordinary Course of Business, (y) those contracts set forth on Schedule 5.12(a)(iv) and (z) other Contracts entered into in the Ordinary Course of Business with commercially reasonable indemnification terms).
(b) True and correct copies of each Significant Contract have been made available to Parent prior to the date hereof. Each Significant Contract is a valid and binding agreement of the Company Plans or a Subsidiary, as the case may be, and, to the Knowledge of the Company, the other parties thereto, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and insurancesubject to general principles of equity). Except as set forth on Schedule 5.12(b), reinsurancethe Company or applicable Subsidiary and, to the Knowledge of the Company, each of the other parties thereto, are not in breach of, default or violation under, any of such Significant Contracts and no event has occurred that with notice or lapse of time, or retrocession treaties both, would constitute such a breach, default or agreementsviolation, slipsexcept for any such breaches, binders, cover notes, defaults or other similar arrangements) that:
(i) are or violations that would not reasonably be required expected to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business operations of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of . Neither the Company nor any Subsidiary has (i) received any written notice of any default or termination under any Significant Contract or (ii) waived or released any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of material rights thereunder. To the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary Knowledge of the Company);
(v) have been entered into since January 1, 2017, and involve none of the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant counterparties to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Significant Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of has notified the Company or any of its Subsidiaries that is necessary for it plans to terminate, cancel or not renew such Significant Contract. To the conduct Knowledge of the business of the Company and its Subsidiaries as currently conductedCompany, no Person (other than managing agency agreements a Significant Customer which is covered in Section 5.21) has outstanding the right to receive or managing general underwriting agreementsrequire a rebate, chargeback, penalty or change in delivery schedule under any Significant Contract.
(bc) As No negative determination of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, andresponsibility has been issued or, to the Knowledge of the Company, each other party thereto, threatened in writing against and is in full force and effect, except where the failure provided to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each or any of its Subsidiaries in connection with any Government Contract or Government Bid. None of the Company nor any of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part no current employee of the Company or any of its Subsidiaries under Subsidiaries, has been debarred or suspended from doing business with any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constituteGovernmental Body, or, after notice to the Knowledge of the Company, threatened with debarment or lapse suspension by any Governmental Body (or by the relevant contracting official of time such entity), or bothbeen informed in writing that any actions by the Company or any Company Subsidiary could result in debarment or suspension by any Governmental Body, will constitute a default on and, to the part Knowledge of the Company, no circumstances exist that would warrant the institution of debarment or suspension proceedings against the Company, any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectof its Subsidiaries or any employee of the Company or any Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Verint Systems Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a4(n) of the Company Disclosure Letter sets forth a list, Schedule lists as of the date hereof all of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all the following Contracts (other than purchase orders) to which the Company or any of its Subsidiaries is a party or by which the Company, Company or any of its Subsidiaries, Subsidiaries or any of their respective assets, rights or properties or assets is bound (other than Company Plans collectively together with any Contract entered into after the date hereof and insuranceprior to the Closing in accordance with this Agreement that, reinsuranceif entered into prior to the date hereof, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by set forth on Section 4(n) of the Company as a Disclosure Schedule, together with the Contracts required to be disclosed on Section 4(m) of the Disclosure Schedule the “material contract” Material Contracts”):
(i) Any Contract (or group of related Contracts) pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of which the Company or any of its Subsidiaries having an outstanding or committed amount equal is obligated to or make payments, after the date hereof, in excess of $10,000,000, other than any Indebtedness between 1,000,000;
(ii) Any Contract (or among any group of related Contracts) pursuant to which the Company and or any of its SubsidiariesSubsidiaries is entitled to receive payments, after the date hereof, in excess of $2,500,000;
(iii) Any Related Party Contract;
(iv) are any keepwell or similar agreement Any Contract under which the Company or any of its Subsidiaries has directly guaranteed advanced or loaned any liabilities amount to any of its directors, officers, or obligations employees or has made a material loan to an unrelated third party;
(v) Any Contract (A) under which the Company or any of its Subsidiaries has any outstanding indebtedness, obligation or liability for borrowed money or has the right or obligation to incur any such indebtedness, obligation or liability in excess of $500,000; or (B) mortgaging, pledging or otherwise placing a Lien on any of the assets of the Company or its Subsidiaries (other than Permitted Encumbrances);
(vi) Any bonds or Contracts of guarantee in which the Company or any of its Subsidiaries acts as a surety or guarantor with respect to any obligation (fixed or contingent) of another Person (other than the Company or under which another any of its Subsidiaries) in excess of $25,000;
(vii) Any Contract (A) containing non-competition provisions prohibiting or restricting the Company or any of its Subsidiaries from competing in any business or geographical area or that contains an exclusivity clause in favor of an unrelated third party or a covenant prohibiting the Company or any of its Subsidiaries from soliciting any Person has directly guaranteed (including any liabilities employees, consultants, customers, suppliers or obligations vendors) or (B) granting a “most-favored nation” status to any Person;
(viii) Any collective bargaining or labor Contract;
(ix) Any Contract for hedging or similar derivative transactions;
(x) Any employment, independent contractor or consulting Contract, in each case, with annual payments or severance or termination payments in excess of $100,000;
(xi) any Contract relating to any future capital expenditures by the Company or its Subsidiaries in excess of $100,000 in the aggregate over the next 12 months;
(xii) Any Contract involving the resolution or settlement of any actual or threatened Proceeding against or involving the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under pursuant to which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)its Subsidiaries is subject to continuing obligations;
(vxiii) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries)Any Lease;
(vixiv) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing Any Contract for the creation or development lease of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) personal property under which the Company or any of its Subsidiaries is the lessee and is obligated to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees make payments in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries100,000 per annum;
(viiixv) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries Any Contract with a Governmental Entity involving an amount in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions10,000;
(ixxvi) would reasonably be expected toAny joint venture, individually partnership or in the aggregatestrategic alliance or any similar agreement involving any sharing of profits, preventlosses, materially delay, costs or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business liabilities of the Company or any of its Subsidiaries after the Effective Timewith any other Person;
(xxvii) contain provisions that prohibit Any agreement entered into after January 1, 2014 providing for the acquisition or disposition of any business, stock or assets (whether by merger, sale of stock, sale of assets or otherwise) for a purchase price in excess of $500,000 or which contains any material outstanding obligations of the Company or its Subsidiaries with respect to any “earn out,” deferred purchase price, indemnification or similar contingent payment obligation;
(xviii) Any Contract with (A) a Material Customer and (B) a Material Supplier; and
(xix) Any Contract to enter into any of its Affiliates from competing the foregoing. Except as set forth in any material line Section 4(n) of business or grant a right of exclusivity to any Person that prevents the Disclosure Schedule, neither the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or nor any of its Subsidiaries on less than ninety is (90) days’ notice with or without payment by the Company lapse of time or any Subsidiary the giving of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultantnotice, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contractsboth), or investment management services is alleged to the Company be, in material breach or default of or under any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicableContract, and, to the Knowledge of the Company, each no other party theretoto any such Material Contract is (with or without the lapse of time or the giving of notice, and or both), or is alleged to be, in full force and effectmaterial breach or default thereunder. Except as set forth in Section 4(n) of the Disclosure Schedule, except where no event has occurred that with notice or lapse of time or both would constitute a material breach or default, result in the failure loss of any material benefit of or to be the Company or any of its Subsidiaries, or permit the termination, material modification, or acceleration under any Material Contract. Each Material Contract is valid, binding, or binding and in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has prior to the date hereof received any written or, to the Knowledge of the Company, oral notice of the existence intention of any event Person to cancel, withdraw, accelerate, fail to renew or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under terminate any Material Contract. The Company has made available to Buyer a correct and complete copy of each Material Contract together with all amendments, except where such default would not constitute a Material Adverse Effect, modifications and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectwaivers thereto.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Harsco Corp), Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a3.12(a) of the Company Disclosure Letter sets forth a list, as of Schedule lists the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all following Contracts to which the Company or any of its Subsidiaries is a party or by which as of the Companydate of this Agreement, any of its Subsidiaries, or any of their respective properties or assets is bound (other than this Agreement, the Company Plans and insurancethe Policies (collectively, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:the “Material Contracts”):
(i) are or any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, as a “definitive material agreement” (as such term is defined in Item 1.01 of Form 8-K of the SEC under the Exchange Act) or that would be required to be disclosed under Item 404 of Regulations S-K under the Securities Act;
(ii) relate to the formation or management any Contract containing any right of any joint venture, partnership, or exclusivity in favor of the other similar agreement that is parties thereto with respect to any matter material to the Company’s business (including the sale, resale or distribution of any of the Company and Company’s or its Subsidiaries’ products or the geographic area in which any product may be sold, taken as a whole;
(iiiresold or distributed) provide for Indebtedness or any covenant limiting, in any respect, the ability of the Company or any of its Subsidiaries to engage in any line of business, compete with any Person or in any geographic area or solicit the employees of another Person;
(iii) each Contract that creates, governs or controls a partnership, joint venture or other similar arrangement with respect to the Company or any of its Subsidiaries;
(iv) each Contract that (A) provides for or relates to Indebtedness of the Company or its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,0005,000,000, other than any Indebtedness between or among any of the Company and any of its SubsidiariesSubsidiaries or (B) provides for or relates to any hedging, derivatives or similar contracts or arrangements;
(ivv) are any keepwell or similar agreement under each lease and sublease pursuant to which the Company or any of its Subsidiaries has directly guaranteed uses or holds any liabilities material property involving payments by or to the Company or any of its Subsidiaries of more than $500,000 on an annual basis;
(A) each Contract entered into after the Balance Sheet Date or (B) each Contract (x) pursuant to which any material earn-out, deferred or contingent payment remains outstanding or (y) entered into on or after August 28, 2009 pursuant to which indemnification obligations are still in effect (excluding indemnification obligations in respect of another Person representations and warranties that survive indefinitely), in each case that relates to the acquisition or under which another Person has directly guaranteed disposition of any liabilities business (whether by merger, sale of stock, sale of assets or obligations otherwise) other than this Agreement;
(vii) each mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien (other than a Permitted Lien) on any material real property or asset of the Company or any Subsidiary thereof;
(viii) each Contract containing restrictions with respect to (A) payment of dividends or any distributions in respect of the equity interests of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which B) the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary pledging of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of shares in its capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
Subsidiaries or (viC) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees guaranty in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to 5,000,000 by the Company or any of its Subsidiaries;
(viiiix) involve each Contract (or could reasonably be expected series of related Contracts) for the purchase or sale of materials (other than purchase orders issued pursuant to involve aggregate a Contract governing such purchase orders or Contracts for the purchase or sale of materials entered into in the ordinary course of business), supplies, goods, services, equipment or other assets providing for annual payments or receipts by the Company and its Subsidiaries or to it and/or the Company and its Subsidiaries in excess Subsidiaries, respectively, during the calendar year prior to the date hereof of $10,000,000 in any twelve month period, other 40,000,000 or more;
(x) than those terminable each Contract set forth on less than ninety (90Section 3.10(d) days’ notice without payment by the Company or any Subsidiary of the Company Disclosure Schedule;
(xi) each material Contract with a Governmental Entity;
(xii) each Contract that provides for the payment, increase or vesting of any material penalty, (y) any Company Lease, benefits or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors compensation in connection with the Transactions;consummation of the Merger; and
(ixxiii) would reasonably be expected to, individually Contracts relating to any single or in series of related capital expenditures by the aggregate, prevent, materially delay, or materially impede the Company’s ability Company pursuant to consummate the Transactions or Parent’s ability to own and/or conduct the business of which the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees has future financial obligations in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements3,000,000.
(b) As of the date of this Agreement, (i) each Each Material Contract is valid and binding on the Company or and any of its Subsidiaries, Subsidiaries to the extent such Person Subsidiary is a party thereto, as applicable, and, and to the Knowledge of the Company, each other party thereto, and is in full force and effecteffect and enforceable in accordance with its terms, except where the failure to be valid, binding, or enforceable, and in full force and effect would not constitute reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance as would not constitute reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effectand to the Knowledge of the Company, and (iv) there are no events or conditions that which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and (iv) to the Knowledge of the Company, the Company has not received any notice from any Person that such Person intends to terminate, or not renew, any Material Contract.
(c) Section 3.12(c) of the Disclosure Schedule sets forth a complete and accurate list of the top ten (10) customers of the Company and its Subsidiaries, taken as a whole, by net revenue during the 12-month period ended as at the Balance Sheet Date (the “Top Customers”) and Section 3.12(c) of the Disclosure Schedule sets forth a complete and accurate list of the top five (5) suppliers of the Company and its Subsidiaries, taken as a whole, by expenditures during the 12-month period ended as at the Balance Sheet Date (the “Top Suppliers”). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, as of the date hereof, (i) none of the Top Customers or the Top Suppliers has canceled or otherwise terminated, or, to the Knowledge of the Company, has informed the Company of its intention to terminate or not renew its relationship with the Company or any of its Subsidiaries and (ii) neither the Company nor any of its Subsidiaries has received written notice that any such Top Customer or Top Supplier, as the case may be, intends to terminate or otherwise materially and adversely (x) modify its relationship with the Company or any of its Subsidiaries or (y) limit its purchases from or sales to, as applicable, the Company or its Subsidiaries (other than in the ordinary course of business).
Appears in 2 contracts
Samples: Merger Agreement (SMART Global Holdings, Inc.), Merger Agreement (SMART Modular Technologies (WWH), Inc.)
Contracts. (ai) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a4.1(j) of the Company Disclosure Letter sets forth a listcorrect and complete list of, as of the date hereof (and the Company has made available to Parent correct and complete copies of this Agreementeach such Contract), any Contracts (or group of all Material Contracts. For purposes related Contracts with the same party or an Affiliate of this Agreementsuch party), “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party to or bound by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than any Company Plans and insuranceBenefit Plan (except in the case of clause (I) below) or Company Real Property Lease), reinsurancein each case, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(iA) are or would be required to be filed by the Company as a “material contractMaterial Contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(iiB) relate (1) restricts the ability of the Company or any of its Subsidiaries (or, after the Acceptance Time, Parent or its Subsidiaries, or, after the Effective Time, the Surviving Company or its Subsidiaries) to compete in any business or with any Person or in any geographical area or (2) would require the disposition of any material assets or line of business of the Company or any Company Subsidiary (or, after the Acceptance Time, Parent or its Subsidiaries, or, after the Effective Time, the Surviving Company or its Subsidiaries);
(C) by its terms calls for aggregate payments or receipt by or to the formation Company or management any of any its Subsidiaries of more than $1,000,000 over the remaining term of such Contract;
(D) constitutes a joint venture, partnership, venture or other partnership or similar agreement arrangement that is material to the business of the Company and its Subsidiaries, taken as a wholewhole or in which the Company owns more than a ten percent (10%) voting or economic interest and which interest has a value of more than $1,000,000;
(iiiE) provide for Indebtedness relates to any loan and credit agreement, note, debenture, bond, indenture, security agreement, letter of the Company credit, capital lease, or other Contract relating to indebtedness , pursuant to which any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations indebtedness of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (1,000,000, is outstanding, or may be incurred, assumed, guaranteed or secured by any asset, other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions solely between or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business among any of the Company or any of its wholly-owned Subsidiaries);
(viF) prohibit prohibits the payment of dividends or distributions in respect of the shares or capital stock any Equity Interest of the Company or any of its Subsidiaries, prohibit prohibits the pledging of any Equity Interest of the shares Company or capital stock any of its Subsidiaries or prohibits the issuance of guarantees by any Subsidiary of the Company;
(G) was entered into within two (2) years of the date of this Agreement and relates to the acquisition or disposition by the Company or any of its Subsidiaries of properties or assets for, in each case, aggregate consideration of more than $1,000,000 and/or pursuant to which the Company or any of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment or guarantee obligations, in each case, that could result in payments in excess of $1,000,000;
(H) is entered into with any directors, executive officers (as such term is defined in the Exchange Act) or five percent (5%) stockholders of the Company or any of their Affiliates (other than the Company or any Company Subsidiary) or immediate family members (in each case, other than any Company Benefit Plan);
(I) is entered into with employees or consultants of the Company or any Company Subsidiary and creates severance or any similar obligations for the Company or any Company Subsidiary in an amount in excess of $500,000, or requires payment of total annual compensation in excess of $500,000;
(J) after the Effective Time would restrict Parent or any of its Subsidiaries in any material respect with respect to the Covered Products;
(K) is for the research, development, manufacturing, supply, testing, distribution, marketing, promotion, license, offer to sell, sale or other research, development or commercial activities by the Company or any of its Subsidiaries or by any Company Partner that is (i) material to any Covered Products or (ii) material to any material Intellectual Property Rights related to any Covered Products, other than non-disclosure agreements, employee invention assignments, purchase orders, materials transfer agreements, software agreements and similar agreements entered into in the ordinary course of business;
(L) is a material settlement, conciliation or similar agreement with any Governmental Authority or which would require the Company or any of its Subsidiaries to pay consideration of more than $1,000,000 after the date of this Agreement;
(M) constitutes a collaboration, joint development or strategic alliance that is material to any Covered Product or the exercise of any Covered Product Rights; or
(N) pursuant to which the Company or any of its Subsidiaries obtains or grants the right to use, or a covenant not to be sued under, any Intellectual Property Rights material to the Company and its Subsidiaries taken as a whole (other than licenses with respect to commercially available software). Each such Contract described in clauses (A) through (N) is referred to herein as a “Material Contract”. Any Contract disclosed under one subsection of Section 4.1(j) of the Company Disclosure Letter shall be deemed to be disclosed for all other subsections of Section 4.1(j) of the Company Disclosure Letter, to the extent applicable.
(ii) Each of the Material Contracts is (A) a legal, valid and binding obligation of the Company or any Subsidiary of the Company or prohibit party thereto and, to the issuance knowledge of any guarantee by the executive officers of the Company, the other party thereto, (B) in full force and effect and enforceable against the Company or any the Subsidiary of the Company party thereto, as applicable, in accordance with its terms, and, (C) to the knowledge of the executive officers of the Company;, enforceable against each other party thereto in accordance with its terms, except for such failures to be valid and binding or to be in full force and effect and enforceable that, individually or in the aggregate, would not have a Company Material Adverse Effect.
(vii1) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development None of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (yx) any Company Leaseis, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of has received notice that the Company or any of its Subsidiaries after the Effective Time;
is, in default under or in breach or violation of any Material Contract or (xy) contain provisions that prohibit the Company or received any of its Affiliates written notice from competing in any material line of business or grant a right of exclusivity counterparty to any Person Material Contract that prevents such counterparty intends to terminate or not renew any Material Contract or is seeking the Company renegotiation of such Material Contract or any Affiliate substitute performance thereunder, (2) to the knowledge of the Company from entering executive officers of the Company, no counterparty to any material territory, marketMaterial Contract is, or field is alleged to be, in default under or freely engaging in business anywhere breach or violation of any Material Contract, and (3) to the knowledge of the executive officers of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a default under, or result in the worlda breach or violation of, other than Contracts that can be terminated (including such restrictive provisions) any Material Contract by the Company or any of its Subsidiaries on less than ninety (90) days’ notice with or without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition that constitutes, or, after notice or lapse of time or both), will constituteexcept, a default on the part of the Company or any of its Subsidiaries under any Material Contractin each case, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute individually or in the aggregate have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Amylin Pharmaceuticals Inc), Merger Agreement (Bristol Myers Squibb Co)
Contracts. (a) Except for this Agreement Each Contract is a valid and each Contract filed as an exhibit binding agreement, and is in full force and effect, and neither the Company nor any of its Subsidiaries is party thereto nor, to the Filed SEC DocumentsCompany’s best knowledge, Section 4.16(aany other party thereto, is in breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Contract. None of the Company Disclosure Letter sets forth a listor any of its Subsidiaries has assigned, as delegated, or otherwise transferred any of its rights or obligations with respect to any Contracts, or granted any power of attorney with respect thereto or to any of the date Company or its Subsidiaries’ assets. No Contract (i) requires the Company or an of this Agreementits Subsidiaries to post a bond or deliver any other form of security or payment to secure its obligations thereunder or (ii) imposes any non-competition covenants that may be binding on, or restrict the Business or require any payments by or with respect to Buyer or any of its Affiliates. The Company has given to Buyer true and correct (A) fully executed copies of each written Contract and (B) written summaries of each oral Contract.
(b) The Contracts constitute all Material Contracts. For purposes the material agreements, statements of this Agreementwork, “Material Contract” means all Contracts purchase orders, arrangements, understandings and other instruments in effect to which the Company or any of its Subsidiaries is a party or by to which the Company, any of its Subsidiaries, Shares or any of their respective properties the Company or its Subsidiaries’ assets is bound (other than Company Plans and insuranceare bound. Schedule 3.17 lists all material Contracts, reinsuranceoral or written, or retrocession treaties or agreementsseparately referencing the applicable subsection below in each case, slips, binders, cover notes, or other similar arrangements) thatincluding:
(i) are or would be required all client Contracts which have generated revenues to be filed by the Company as a “material contract” pursuant and its Subsidiaries or are expected to Item 601(b)(10generate revenues to the Company and its Subsidiaries in excess of $10,000 in any of the current or next two (2) fiscal years or any of Regulation S-K under the Securities Acttwo (2) preceding fiscal years of the Company;
(ii) relate any other Contract pursuant to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries is required to pay, has directly guaranteed any liabilities paid or obligations of another Person is entitled to receive or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations received an amount in excess of $10,000,000 (other than 10,000 during the current fiscal year or any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary one of the Company)two preceding fiscal years;
(viii) have been entered into since January 1all employment Contracts, 2017employee leasing Contracts, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries)consultant and sales representatives Contracts;
(viiv) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiariesall material sales, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights agency, factoring, commission and distribution contracts to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) which the Company or any of its Subsidiaries to is a third Person party;
(v) all ongoing agreements for purchases or (y) a third Person to receipt by the Company or any of its SubsidiariesSubsidiaries of media, in each casesupplies, for aggregate annual equipment, goods or one-time fees in excess of $2,000,000, services (other than commercially available “off-the-shelf” software licenses under Section 3.17(b)(ii) or (iii));
(vi) all joint venture, strategic alliance, limited liability company and partnership agreements to which software the Company or any of its Subsidiaries is licensed a party;
(vii) all significant documents relating to any acquisitions or dispositions of assets by the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month periodall material licensing agreements, including agreements licensing Intellectual Property Rights, other than “shrink wrap” licenses;
(ix) all secrecy, confidentiality and nondisclosure agreements restricting the conduct of the Company or any of its Subsidiaries;
(x) than those terminable on less than ninety all contracts relating to patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and other Intellectual Property Rights of the Company or any of its Subsidiaries;
(90xi) days’ notice without payment all guarantees, indemnification arrangements and other hold harmless arrangements made or provided by the Company or any Subsidiary of the Company of any material penaltyits Subsidiaries, (y) any Company Leaseincluding all ongoing agreements for repair, warranty, maintenance, service, indemnification or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactionssimilar obligations;
(ixxii) would reasonably be expected toall contracts or agreements with or pertaining to the Company or any of its Subsidiaries to which or any Beneficial Holder or any Affiliate of any Beneficial Holder is a party;
(xiii) all agreements relating to real and tangible personal property, individually including any Real Property lease, sublease or in space sharing, license or occupancy agreement, whether the aggregate, prevent, materially delay, Company or materially impede any of its Subsidiaries is granted or granting rights thereunder to occupy or use any premises;
(xiv) any agreement to manufacture any goods to which the Company’s ability Company or any of its Subsidiaries is a party;
(xv) all material agreements relating to consummate the Transactions or Parent’s ability Tangible Assets; and
(xvi) all agreements relating to own and/or conduct the business outstanding Indebtedness.
(c) None of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity is subject to any Person that prevents the Company Contract which prohibits, limits or restricts any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) use by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company it of any material penalty;
(xi) involve information regarding its customers, including limiting the retention solicitation of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy communication by it with its customers or claims administration services with respect providing any information regarding its customers to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business third party. Each of the Company and its Subsidiaries has acted in compliance in all material respects with all terms and conditions and privacy policies published on each website, including with respect to its use of information regarding customers. Except as currently conductedset forth in Schedule 3.17(c), other than managing agency agreements or managing general underwriting agreementsthe disclosure to Buyer, and the use by it, of customer identities and information regarding them and communications with them by Buyer, will not violate any Contract.
(bd) As Each of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of is in compliance with all covenants, including all financial covenants, in all notes, indentures, bonds and other instruments or agreements evidencing any event or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectIndebtedness.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Union Bridge Holdings Ltd.), Stock Purchase Agreement (Iao Kun Group Holding Co LTD)
Contracts. (a) Except as set forth on Schedule 3.07, MBL is not a party to or subject to: (i) any employment, consulting or severance contract or material arrangement with any past or present officer, director or employee of MBL; (ii) any plan, material arrangement or contract providing for this Agreement bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar material arrangements for or with any past or present officers, directors or employees of MBL; (iii) any collective bargaining agreement with any labor union relating to employees of MBL; (iv) any agreement which by its terms limits the payment of dividends by any MBL Subsidiary; (v) any instrument evidencing or related to material indebtedness for borrowed money whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which MBL is an obligor to any person, which instrument evidences or relates to indebtedness other than deposits, repurchase agreements, bankers’ acceptances, advances from the FHLB, and each Contract filed as an exhibit “treasury tax and loan” accounts established in the ordinary course of business and transactions in “Federal funds” or which contains financial covenants or other restrictions (other than those relating to the Filed SEC Documentspayment of principal and interest when due) which would be applicable on or after the Closing Date to HSB; (vi) any contract (other than this Agreement) limiting the freedom, Section 4.16(a) in any material respect, of the Company Disclosure Letter sets forth a list, MBL to engage in any type of banking or bank-related business in which MBL is permitted to engage under applicable law as of the date of this Agreement; or (vii) any agreement, of all Material Contracts. For purposes of this Agreementwritten or oral, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide obligates MBL for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of more than $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements10,000 annually.
(b) As True and correct copies of agreements, plans, contracts, arrangements and instruments referred to in Section 3.07(a), if any, have been made available to HSB on or before the date of this Agreement, (i) each Material Contract is valid hereof and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or are in full force and effect would not constitute a Material Adverse Effecton the date hereof, and MBL (ii) the Company and each of its Subsidiaries, andnor, to the Knowledge knowledge of the CompanyMBL, any other party theretoto any such contract, plan, arrangement or instrument) has performed not materially breached any provision of, or is in default in any respect under any term of, any such contract, plan, arrangement or instrument. No party to any material contract, plan, arrangement or instrument as to which MBL is a party, will have the right to terminate any or all obligations required of the provisions of any such contract, plan, arrangement or instrument as a result of the execution of, and the transactions contemplated by, this Agreement. None of the employees (including officers) of MBL possesses the right to terminate his/her employment and receive or be performed by paid (or cause MBL to accrue on his/her behalf) benefits solely as a result of the execution of this Agreement or the consummation of the transactions contemplated thereby. No plan, contract, employment agreement, termination agreement, or similar agreement or arrangement to which MBL is a party or under which MBL may be liable contains provisions which permit any employee or independent contractor to terminate it under each Material Contractwithout cause and continue to accrue future benefits thereunder. No such agreement, except where plan, contract, or arrangement provides for acceleration in the vesting of benefits or payments due thereunder upon the occurrence of a change in ownership or control of MBL or upon the occurrence of a subsequent event. No such noncompliance would not constitute a Material Adverse Effectagreement, (iii) neither the Company nor plan or arrangement with respect to officers or directors of MBL or to any of their respective employees, provides for benefits which may cause an “excess parachute payment” or the disallowance of a federal income tax deduction under Code Section 280G.
(c) Neither MBL nor its Subsidiaries Subsidiary is in default under (an no event has received notice of the existence of any event or condition that constitutesoccurred which, or, after with due notice or lapse of time or both, will constitute, would constitute a default on the part under) or is in violation of the Company any provision of any note, bond, indenture, mortgage, deed of trust, loan agreement, lease or other agreement to which it is a party or by which it is bound or to which any of its Subsidiaries under respective properties or assets is subject and, to the knowledge of MBL, no other party to any Material Contractsuch agreement (excluding any loan or extension of credit made by MBL or its Subsidiary) is in default in any respect thereunder, except where for such default defaults or violations that would not constitute not, individually or in the aggregate, have a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default Effect on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse EffectMBL.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Harvard Illinois Bancorp, Inc.)
Contracts. (a) Except for this Agreement SECTION 2.16(a) OF THE DISCLOSURE SCHEDULE (with paragraph references corresponding to those set forth below) contains a true and complete list of each Contract filed as an exhibit of the following Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Purchaser prior to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date execution of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts ) to which the Company or any of its Subsidiaries Seller is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets the Seller Assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatbound:
(iA) are all Contracts (excluding Benefit Plans) providing for a commitment of employment or would be required consultation services for a specified or unspecified term to be filed by any Employee, the Company as name, position, and rate of compensation of each Employee party to such a “material contract” pursuant Contract, and the expiration date of each such Contract; and (B) any written or unwritten representations, commitments, promises, communications or courses of conduct (excluding Benefit Plans and not embodied in a Contract) involving an obligation of Seller to Item 601(b)(10) make payments in any year, other than with respect to salary or incentive compensation payments in the ordinary course of Regulation S-K under business, to any Employee exceeding $25,000 or any group of Employees exceeding $50,000 in the Securities Actaggregate;
(ii) relate all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of Seller to engage in any business activity or compete with any Person in connection with the formation Business or, except as provided in Section 4.10, prohibiting or management limiting the ability of any joint venture, partnership, or other similar agreement that is material Person to compete with Seller in connection with the business of the Company and its Subsidiaries, taken as a wholeBusiness;
(iii) provide for Indebtedness of all partnership, joint venture, shareholders' or other similar Contracts with any Person in connection with the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its SubsidiariesBusiness;
(iv) are all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom Seller deals in connection with the Business and which involve payments or potential payments, pursuant to the terms of any keepwell such Contract, by or similar agreement under which the Company or any to Seller of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of more than $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company)20,000;
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant all Contracts relating to the Investment Guidelinesfuture disposition or acquisition of any Seller Assets, other than dispositions or acquisitions of supplies, products, properties, or other assets Inventory in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries)consistent with past practice;
(vi) prohibit all Contracts between or among Seller, on the payment one hand, and Parent, any officer, director, Affiliate or Associate of dividends Parent or distributions in respect of the shares or capital stock of the Company Seller or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance Associate of any guarantee by such officer, director or Affiliate, on the Company or any Subsidiary of the Company;other hand; and
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person all other Contracts with respect to the Company Business that (A) involve the payment or any of its Subsidiariespotential payment, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed pursuant to the Company or terms of any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts such Contract, by or to it and/or its Subsidiaries in excess Seller of more than $10,000,000 in any twelve month period, other 50,000 and (xB) than those terminable on less than ninety (90) days’ cannot be terminated within 30 calendar days after giving notice of termination without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing resulting in any material line of business cost or grant a right of exclusivity penalty to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementsSeller.
(b) As of the date of this Agreement, (iEach Contract required to be disclosed in SECTION 2.16(a) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and OF THE DISCLOSURE SCHEDULE is in full force and effecteffect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms, of each Seller, and to the knowledge of Parent and Seller, of each other party thereto; and except where the failure to be valid, binding, as disclosed in SECTION 2.16(b) OF THE DISCLOSURE SCHEDULE neither Seller or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, andParent nor, to the Knowledge knowledge of the CompanySeller or Parent, any other party theretoto such Contract is, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries or has received notice that it is, in violation or breach of the existence of or default under any event such Contract (or condition that constitutes, or, after with notice or lapse of time or both, will constitutewould be in violation or breach of or default under any such Contract).
(c) Except as disclosed in SECTION 2.16(c) OF THE DISCLOSURE SCHEDULE, (i) the execution, delivery and performance by Seller and Parent of this Agreement and the Operative Agreements to which each is a default on party, and the part consummation of the Company transactions contemplated hereby and thereby, will not (A) result in or give to any Person any right of termination, cancellation, acceleration or modification in or with respect to, (B) result in or give to any Person any additional rights or entitlement to increased, additional, accelerated or guaranteed payments under or (C) result in the creation or imposition of any Lien upon Seller or any of its Subsidiaries under Assets and Properties under, any Material Business Contract, except where such default would not constitute a Material Adverse Effect, and (ivii) there are no events neither Seller nor Parent is a party to or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of bound by any counterparty under such Material Business Contract, except as would not constitute a Material Adverse Effectthat, in the case of each of the foregoing, has been or could reasonably be expected to be, individually or in the aggregate with any other Business Contracts, materially adverse to the Condition of the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Family Christian Stores Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as As of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which Agreement neither the Company or nor any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatto:
(i) are or any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate any Contract that (A) restricts the ability of the Company or any of its Subsidiaries in any material respect to the formation engage or management of compete in any joint venture, partnershipbusiness or to compete with any person in any geographical area, or other similar agreement that by its terms restricts the persons to whom the Company or any of its existing or future Subsidiaries may sell products or deliver services, and (B) is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide , except for Indebtedness of any such Contract that may be canceled by the Company, without any material penalty or other liability to the Company or any of its Subsidiaries having an outstanding Subsidiaries, upon notice of 90 days or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiariesless;
(iviii) are any keepwell or loan and credit agreement, mortgage, note, debenture, bond, indenture and other similar agreement under Contract pursuant to which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations Indebtedness of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than 10,000,000, is outstanding or may be incurred, or any contracts under which the Company Contract or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made instrument pursuant to the Investment Guidelines, which indebtedness for borrowed money may be incurred or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of is guaranteed by the Company or any of its Subsidiaries, prohibit the pledging of the shares other than any such Contract solely between or capital stock among any of the Company or and any Subsidiary of its Subsidiaries and except for letters of credit entered into in the Company or prohibit the issuance ordinary course of any guarantee by the Company or any Subsidiary of the Companybusiness;
(viiiv) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing any Contract that by its terms calls for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted aggregate payments by (x) the Company or any of its Subsidiaries to a third Person of more than $10,000,000 in any fiscal year period or (y) a third Person $30,000,000 in the aggregate over the term of such Contract, except for any such Contract that may be canceled by the Company, without any material penalty or other liability to the Company or any of its Subsidiaries, in each case, for aggregate annual upon notice of 90 days or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiariesless;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (zv) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, for the acquisition or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) disposition by the Company or any of its Subsidiaries on less of properties or assets for, in each case, aggregate consideration of more than ninety $10,000,000, except for acquisitions of supplies and acquisitions and dispositions of inventory in the ordinary course of business;
(90vi) days’ notice without payment by any Contract that provides for interest rate caps, collars or swaps, currency hedging or any other similar agreement to which the Company or any Subsidiary of its Subsidiaries is a party;
(vii) any Contract that relates to the voting or registration for sale under the Securities Act of any securities of the Company;
(viii) any Contract that is related to the formation, creation, operation or management of any joint venture, partnership or similar arrangement;
(ix) any Contract that grants any put option, call option, right of first refusal or right of first offer or similar right with respect to any assets or businesses of the Company and its Subsidiaries;
(x) any Contract that contains a “most favored nation” or any similar term for the benefit of any material penaltya third party;
(xi) involve the retention of any independent contractor, consultant, Contract with or agency for the provision of services to binding upon the Company with annualized fees in excess or any of $300,000;its Subsidiaries or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; or
(xii) constitute collective bargaining agreements;
any Contract that represents any commitment or agreement to enter into any of the foregoing. Each such Contract described in clauses (xiiii) involve the provision of material third-party administration or other policy or claims administration services with respect to through (xii) above, and any Insurance Contracts, or investment management services Contract that by its terms calls for aggregate payments to the Company or any of its Subsidiaries; or
(xiv) provide for Subsidiaries of more than $10,000,000 in any fiscal year period or $30,000,000 in the outsourcing aggregate over the term of such Contract, is referred to herein as a “Specified Contract”. The Company has heretofore delivered or made available to Parent correct and complete copies of each Specified Contract, together with any material function or part and all amendments and supplements thereto. Each of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract Specified Contracts is valid and binding on the Company or any the Subsidiary of its Subsidiaries, to the extent such Person is a Company party thereto, as applicable, thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure for such failures to be valid, binding, valid and binding or to be in full force and effect that are not and would not constitute a Material Adverse Effectreasonably be expected to be, (ii) individually or in the aggregate, material to the Company and each of its Subsidiaries, andtaken as a whole. There is no default under any Specified Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries or, to the Knowledge of the Company, by any other party thereto, has performed all obligations required to be performed by it under in each Material Contract, case except where for such noncompliance defaults and events that are not and would not constitute a Material Adverse Effectreasonably be expected to be, (iii) neither individually or in the aggregate, material to the Company nor any of and its Subsidiaries has received notice of the existence of any event or condition that constitutesSubsidiaries, or, after notice or lapse of time or both, will constitute, taken as a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectwhole.
Appears in 1 contract
Samples: Merger Agreement (Covance Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a listlisted or described on SCHEDULE 4.14, as of the date hereof, none of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which the Company or any of its Subsidiaries Acquired Companies is a party to or bound by which any written or oral leases, agreements or other contracts ("CONTRACTS") that are of a type described below (such Contracts that are required to be listed on SCHEDULE 4.14 are referred herein to as the Company"MATERIAL CONTRACTS"):
(a) any written or material consulting agreement or employment agreement, and any collective bargaining arrangement with any labor union and any such agreements currently in negotiation or proposed;
(b) any Contract for capital expenditures or the acquisition or construction of fixed assets in excess of $100,000;
(c) any Contract for the purchase, maintenance or acquisition, or the sale or furnishing of materials, supplies, merchandise, machinery, equipment, parts or other property or services requiring remaining aggregate future payments in excess of $100,000, other than for the purchase or sale of inventory in the Ordinary Course of Business;
(d) any Contract relating to the borrowing of money, or the guaranty of another Person's borrowing of money or other obligation, including, without limitation, all notes, mortgages, indentures and other obligations, guarantees of performance, agreements and instruments for or relating to any lending or borrowing;
(e) any Contract granting any Person a Lien on all or any part of the material assets of any of its Subsidiariesthe Acquired Companies, other than Permitted Liens or Liens which will be released at the Closing;
(f) any Contract under which any of the Acquired Companies is (i) a lessee or sublessee of any machinery, equipment, vehicle or other tangible personal property, or (ii) a lessor of any tangible personal property owned by any of the Acquired Companies, in any single lease under (i) or (ii) having an original value in excess of $100,000;
(g) any Contract under which any of the Acquired Companies has granted or received a license or sublicense or under which it is obligated to pay or has the right to receive a royalty, license fee or similar payment in an amount in excess of $100,000;
(h) any Contract which include a non-competition provision, a non-hire or non-solicitation provision, or any other provision that restricts in any material manner the Acquired Companies' conduct of their respective properties or assets is bound (business, other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:confidentiality agreements entered into in the Ordinary Course of Business;
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness Contract with any stockholder of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its SubsidiariesAcquired Companies; or
(xivj) provide for the outsourcing any joint venture or partnership Contract. The Company has provided Parent a true and complete copy of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries each written Material Contract. Except as currently conductedset forth on SCHEDULE 4.14, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is a valid and binding obligation of the applicable Acquired Company party thereto, enforceable in accordance with its terms, subject to bankruptcy, reorganization, receivership and other Laws affecting creditors' rights generally. Except as set forth on SCHEDULE 4.14, neither the applicable Acquired Company or any of its Subsidiariesparty to such Material Contract nor, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company and each of its Subsidiaries, and, to the Knowledge of the Company's Knowledge, any other party thereto, has performed all obligations required to be performed by it under each such Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any event Contract is in material breach or condition that constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract. On or prior to the Closing, except the agreements identified on SCHEDULE 4.14(I) as would not constitute a Material Adverse Effectterminable at Closing shall be terminated as between the Acquired Companies and the Affiliates party thereto.
Appears in 1 contract
Samples: Merger Agreement (Pactiv Corp)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(aSet forth in Part 3.13(a) of the Company Disclosure Letter sets forth Schedule is a list, as list of each of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities rights or obligations as of another Person the date of this Agreement:
(i) each Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date of this Agreement, and each Contract that would be required to be disclosed in a Current Report on Form 8-K under the Exchange Act;
(ii) each Contract that limits, curtails or restricts in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area or line of business, or hire or solicit for employment any person, or that contains any "most favored nation" provisions granted by the Company or any of its Subsidiaries or pursuant to which another Person has directly the Company or any of its Subsidiaries is or after the Closing would be restricted in any material respect with respect to the development, manufacture, marketing or distribution of their respective products or services;
(iii) each joint venture or similar agreement or other Contract involving the purchase or disposition of any business or any material assets;
(iv) each indemnification, employment or other Contract with any director, officer or other Affiliate of the Company or its Subsidiaries;
(v) each loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money is guaranteed by the Company or any liabilities of its Subsidiaries or obligations any Contract relating to the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(vvi) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration Contract under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of which the Company or any of its SubsidiariesSubsidiaries has advanced or loaned any amount to, or guaranteed any obligations of, any third party (excluding, for avoidance of doubt, trade accounts receivable incurred in the ordinary course of business);
(vivii) prohibit (A) Contracts with the payment of dividends or distributions in respect top 25 customers, determined on the basis of the shares or capital stock amount of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of revenues expected to be received by the Company or any Subsidiary from each customer in the 24-month period ending December 31, 2005, (B) each Contract with the top 25 suppliers and vendors of the Company and its Subsidiaries, determined on the basis of the Company's or prohibit any Subsidiary's expected payments to such suppliers and vendors under such Contracts in the issuance 24-month period ending December 31, 2005, and (C) each customer to which the Company or any Subsidiary provides annual maintenance during any annual contract period at an effective rate of any guarantee by less than 18% of the net or list price of the software for which the software maintenance is provided per annual contract period (based on the license component of the original contract with such customer);
(viii) each "single source" supply Contract of the Company or any Subsidiary of the Company;
(viiix) restrict each material Contract for any development, marketing, resale, distribution, sales representative or grant rights similar arrangement relating to use any product or practice rights under service;
(x) each material Intellectual Propertyexecutory Contract entered into in connection with the settlement or other resolution of any suit, including agreements providing for claim, action, investigation or proceeding;
(xi) each Contract granting a third party any license to any of the creation or development of Company's material Intellectual Property or access and that is not limited to the internal use of hosted Software and licenses such third party, other than in the ordinary course of business consistent with past practice;
(xii) each Contract pursuant to use or practice material Intellectual Property granted by (x) which the Company or any of its Subsidiaries to has been granted by a third Person or (y) a third Person party any license to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiariesmaterial Intellectual Property;
(viiixiii) involve each Contract (A) providing for any license or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) franchise granted by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services pursuant to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of which the Company or any of its Subsidiaries that has agreed or is necessary required to provide any third party with access to source code or to provide for such source code to be put in escrow or (B) containing a provision having the conduct of effect (other than as may have been or will be caused by the business forward merger of the Company with and into Merger Sub, with Merger Sub surviving, as contemplated by this Agreement instead of the reverse merger of Merger Sub with and into the Company, with the Company surviving) of providing that the consummation of any of the Transactions or the execution, delivery or effectiveness of this Agreement will require that a third party be provided with access to source code or that any such source code be released from escrow and provided to any third party;
(xiv) each collective bargaining agreement;
(xv) each lease or rental Contract involving real property;
(xvi) each lease or rental Contract involving personal property and payments in excess of $50,000 per year or $100,000 over the term of such Contract;
(xvii) each Contract pursuant to which the Company or any of its Subsidiaries as currently conductedreceives consulting or maintenance services that is not terminable by the Company or such Subsidiary on notice of 90 days or less, other has a term of more than managing agency agreements one year or managing general underwriting agreements.involves payments by the Company or any of its Subsidiaries in excess of $50,000 per year or $100,000 over the term of such Contract;
(bxviii) As each Contract that provides for a maintenance term longer than twelve months; and
(xix) each commitment or agreement to enter into any of the foregoing. Each Contract and other document listed or required to be listed on Part 3.13(a) of the Company Disclosure Schedule is referred to as a "Material Contract". The Company has made available to Parent copies of each Material Contract in existence as of the date of this Agreement, together with all amendments and supplements thereto.
(ib) each Each of the Material Contract Contracts is valid valid, binding and binding on in full force and effect and is enforceable in accordance with its terms by the Company or and its Subsidiaries party thereto, subject to the Bankruptcy and Equity Exception. Neither the Company nor any of its SubsidiariesSubsidiaries is in default in any material respect under any Material Contract, to the extent such Person is a party thereto, as applicable, andnor, to the Knowledge of the Company, each does any condition exist (other than as may have been or will be caused by the forward merger of the Company with and into Merger Sub, with Merger Sub surviving, as contemplated by this Agreement instead of the reverse merger of Merger Sub with and into the Company, with the Company surviving) that, with notice or lapse of time or both, would constitute a default in any material respect thereunder by the Company or its Subsidiaries party thereto, and is in full force and effect, except where the failure to be valid, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) nor has the Company and each or any of its Subsidiaries, andSubsidiaries received any written or, to the Knowledge of the Company, oral claim or notice of default under any Material Contract. To the Knowledge of the Company, no other party theretoto any Material Contract is in default in any material respect thereunder, has performed all obligations required to be performed by it under each Material Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor does any of its Subsidiaries has received notice of the existence of any event or condition exist that constitutes, or, after with notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default both would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of in any counterparty under material respect by any such Material Contract, except as would not constitute a Material Adverse Effectother party thereunder.
Appears in 1 contract
Samples: Merger Agreement (Broadvision Inc)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a5.12(a) of the Company Seller Disclosure Letter Schedule sets forth a list, complete and accurate list of the following Contracts related to the Business as of the date of this AgreementAgreement (each, of all Material Contracts. For purposes of this Agreement, a “Material Contract” means all Contracts and collectively with the Intellectual Property Licenses, the “Material Contracts”):
(i) any such Contract pursuant to which a Seller refers customers to a third party provider or installers of solar energy systems, other than any Contract between a Seller or any of its Subsidiaries and Buyer or any of Buyer’s Subsidiaries;
(ii) any such Contract pursuant to which a Seller has any interest in a tax equity fund or similar vehicle;
(iii) (A) any such Contract pursuant to which a Seller or any of its Subsidiaries has licensed or is obligated to license any Transferred IPR, or (B) any such Contract pursuant to which a third party has licensed any Intellectual Property Rights to a Seller or any of its Subsidiaries that is material to the Company Business; excluding, for the purpose of (A) and (B), employee agreements, agreements with consultants and independent contractors, non-disclosure agreements entered into in the ordinary course of business, and Contracts listed elsewhere in this Agreement;
(iv) any such Contract with any Business Employees, including Employment Agreements;
(v) any such Contract with any labor union, works council or any collective bargaining agreement or similar agreement with any Business Employees;
(vi) any such Contract under which a Seller or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding Fifty Thousand Dollars ($50,000) or under which any Person would be deemed to have Indebtedness to a Seller or any of its Subsidiaries in amounts in the aggregate exceeding Fifty Thousand Dollars ($50,000);
(vii) any such Contract relating to borrowed money or other Indebtedness or the mortgaging, pledging, or otherwise placing a Lien on any Acquired Assets;
(viii) a lease, sublease, or similar Contract with any Person under which (A) a Seller or any of its Subsidiaries is lessee of, or holds or uses, any equipment, vehicle, or other tangible personal property owned by any Person, or (B) a Seller or any of its Subsidiaries is a party lessor or sublessor of, or makes available for use by which any Person, any equipment, vehicle, or other tangible personal property owned or leased by a Seller or its Subsidiaries in any case that has an aggregate future Liability or receivable, as the Companycase may be, in any fiscal year in excess of Fifty Thousand Dollars ($50,000);
(ix) a lease of Transferred Leasehold Property;
(x) (A) any such continuing Contract for the future purchase by a Seller or its Subsidiaries of materials, supplies, equipment, or services, (B) a management, consulting, or other similar Contract for services to be provided to Seller or any of its Subsidiaries, or (C) an advertising agreement or arrangement, in any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required such case that has an aggregate future Liability in any fiscal year to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount equal to or Person in excess of Fifty Thousand Dollars ($10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company50,000);
(vxi) have been entered into since January 1, 2017, and involve the acquisition from another Person any such Contract containing a most favored nation or disposition to another Person similar provision in favor of capital stock any customer or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its Subsidiaries counterparty to a third Person or (y) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company Seller or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (yxii) any Company Lease, or (z) any such Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company obligating a Seller or any of its Subsidiaries after the Effective Timeto purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party;
(xxiii) contain provisions that prohibit (A) any such Contract which does not limit the Company aggregate Liability of a Seller and its Subsidiaries to the aggregate amount paid to a Seller and its Subsidiaries pursuant to such Contract or (B) any such Contract which does not explicitly exclude the payment of consequential damages;
(xiv) any such Contract or group of related Contracts either involving more than Fifty Thousand Dollars ($50,000) or not entered into in the ordinary course of business;
(xv) any such Contract between or among a Seller and one or more of its Affiliates from competing in Affiliates;
(xvi) any such Contract imposing any material line restriction on the right or ability of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company Seller or any of its Subsidiaries on less than ninety (90) days’ notice without payment by or that would purport to materially limit the Company or any Subsidiary freedom of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company Buyer or any of its Subsidiaries; or): (A) to compete with any other Person or to engage in any line of business, market or geographic area, (B) to develop or distribute any Transferred Technology, or (C) to hire or solicit potential employees or consultants;
(xivxvii) provide any such Contract for the outsourcing disposition of any material function portion of the assets or part business (whether by merger, sale of stock, sale of assets, or otherwise) of a Seller or any of its Subsidiaries;
(xviii) any such Contract for the acquisition of the business or capital stock of the Company any third Person (whether by merger, sale of stock, sale of assets, or otherwise);
(xix) any such Contract pursuant to which a Seller or any of its Subsidiaries is bound to, or has committed to provide any service to any third party on an exclusive basis (excluding customization of services for or by a party in the ordinary course of business);
(xx) any such Contract that involves a sharing of revenues, profits, cash flows, expenses, or Losses with other Persons;
(xxi) any settlement agreement under which a Seller or any of its Subsidiaries has ongoing obligations;
(xxii) any such Contract that requires a notice or consent in connection with, or otherwise contains a provision relating to a “change of control” that would prohibit the consummation of, the transactions contemplated by this Agreement;
(xxiii) any other Contract, whether or not made in the ordinary course of business, that is necessary material to the Business;
(xxiv) any such Contract under which the consequences of a default or termination could have a Business Material Adverse Effect; and
(xxv) any such Contract for the conduct installation of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreementssolar energy systems.
(b) As Each Seller has made available to Buyer true and correct copies of all Contracts (including all amendments, supplements, and other modifications thereto) as in effect on the date of this Agreement, (i) each Material . Each Transferred Contract is a valid and binding on the Company agreement of such Seller or its Subsidiaries and is in full force and effect against such Seller or its Subsidiaries in accordance with its terms. No Seller nor any of its SubsidiariesSubsidiaries has violated or breached in any material respect, to the extent such Person is a party theretoand no Seller nor any of its Subsidiaries has committed any material default under, as applicableany Transferred Contract, which remains uncured, and, to the Knowledge of the CompanySellers, each no other party theretoPerson has violated or breached in any material respect, or committed any material default under, any Transferred Contract which remains uncured. To the Knowledge of the Sellers, no event has occurred, and is in full force and effectno circumstance or condition exists, except where the failure to be valid, bindingthat (with or without notice or lapse of time) will, or could reasonably be expected to: (i) result in full force and effect would not constitute a Material Adverse Effectmaterial violation or material breach of any of the provisions of any Transferred Contract, (ii) give any Person the Company and each of its Subsidiaries, and, right to the Knowledge of the Company, declare a default or exercise any other party thereto, has performed all obligations required to be performed by it remedy under each Material any Transferred Contract, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither give any Person the Company right to accelerate the maturity or performance of any Transferred Contract, or (iv) give any Person the right to cancel, terminate or modify any Transferred Contract. No Seller nor any of its Subsidiaries has received any written notice (or, to the Knowledge of the existence of Sellers, other communication) regarding any event actual or condition that constitutespossible material violation or material breach of, oror material default under, after notice or lapse of time or bothany Contract, will constitute, a default on the part of the Company or which remains uncured. No Seller nor any of its Subsidiaries has waived any of its respective material rights under any Material Transferred Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, Previously Disclosed or as of the date of otherwise provided in this Agreement, none of all Material Contracts. For purposes of this AgreementPublic Partnership, “Material Contract” means all Contracts to which the Company or Private Partnership, nor any of its their Subsidiaries is a party to, and none of the properties or by which the Companyassets of Public Partnership, Private Partnership or any of their Subsidiaries is bound by, any Contract (i) which, upon the consummation of its Subsidiariesthe Transactions or the approval of the holders of Private Partnership Units or Public Partnership Units of the Transactions will (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from Public Partnership, Private Partnership, Buyer, Buyer Parent, Surviving Private Partnership, Surviving Public Partnership, or any of their respective properties Subsidiaries to any officer or assets employee thereof; (ii) which is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) that:
(i) are or would be required to be filed by the Company as a “"material contract” pursuant to " (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate to the formation or management of any joint venture, partnership, or other similar agreement that is material to the business of the Company and its Subsidiaries, taken as a whole;
SEC) to be performed after the date of this Agreement; (iii) provide for Indebtedness with or to a labor union or guild (including any collective bargaining agreement); (iv) (including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan) any of the Company benefits of which will be increased, or the vesting of the benefits of which will be accelerated upon the consummation of the Transactions or the approval of the holders of Private Partnership Units or Public Partnership Units of the Transactions or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (v) granting any material Encumbrance on any material asset of Public Partnership or Private Partnership or any of their Subsidiaries; (vi) that is a material contract with (A) General Partner or any of its Subsidiaries having an Affiliates or (B) any current or former (to the extent that any obligations of Public Partnership or Private Partnership are outstanding under such contract) officer, director or committed amount equal to employee of Public Partnership or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries;
(iv) are any keepwell or similar agreement under which the Company Private Partnership or any of its their Subsidiaries other than Previously Disclosed Compensation and Benefit Plans; (vii) under which General Partner, Public Partnership or Private Partnership or any of their Subsidiaries has directly borrowed or may borrow any money from, has guaranteed any liabilities borrowing by any Person, or obligations issued or may issue any note, bond, debenture or other evidence of another Person indebtedness to, any Person, or under which another Person has directly guaranteed any liabilities other note, bond, debenture or obligations other evidence of the Company indebtedness of Public Partnership or Private Partnership or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than any contracts under which the Company or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, 5,000,000 individually and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the Investment Guidelines, or of supplies, products, properties, or other assets 15,000,000 in the ordinary course aggregate; (viii) that is any material currency exchange, interest rate exchange, commodity exchange or similar contract; (ix) that is a contract for any material joint venture or similar arrangement; or (x) that is a contract that includes any noncompetition or nonsolicitation covenant or any exclusive dealing or similar arrangement that limits to any material extent the freedom of business or of suppliesPublic Partnership, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company Private Partnership or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the shares or capital stock of the Company or any Subsidiary of the Company or prohibit the issuance of any guarantee by the Company or any Subsidiary of the Company;
(vii) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted by (x) the Company or any of its their Subsidiaries to a third Person compete (geographically or (yotherwise) a third Person to the Company or any of its Subsidiaries, in each case, for aggregate annual or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiaries;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (z) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents will, after the Company Closing, so limit competition by the Public Partnership Surviving Partnership, Private Partnership Surviving Partnership or any Affiliate their Subsidiaries (collectively, the "SELLER MATERIAL CONTRACTS"). Each of the Company from entering any material territorySeller Material Contracts is valid, marketbinding, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(xi) involve the retention of any independent contractor, consultant, or agency for the provision of services to the Company with annualized fees in excess of $300,000;
(xii) constitute collective bargaining agreements;
(xiii) involve the provision of material third-party administration or other policy or claims administration services with respect to any Insurance Contracts, or investment management services to the Company or any of its Subsidiaries; or
(xiv) provide for the outsourcing of any material function or part of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract is valid and binding on the Company or any of its Subsidiaries, to the extent such Person is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where and is enforceable against Public Partnership, Private Partnership and/or their Subsidiaries, as the failure case may be, in accordance with its terms. As of the date hereof, neither Public Partnership, Private Partnership nor any of their Subsidiaries has received written or oral notice of cancellation of or default under or intent to be validcancel or call a default under any of the Seller Material Contracts. Public Partnership, binding, or in full force and effect would not constitute a Material Adverse Effect, (ii) the Company Private Partnership and each of its Subsidiaries, and, to the Knowledge of the Company, any other party thereto, Subsidiaries has performed all material obligations required to be performed by it to date under each the Seller Material ContractContracts, except where such noncompliance would not constitute a Material Adverse Effect, (iii) neither the Company nor any of its Subsidiaries has received notice of the existence of any and to Sellers' knowledge there exists no event or condition that constitutes, or, after which (with or without notice or lapse of time or both, will constitute, ) would be a breach or a default on the part of the Company Public Partnership, Private Partnership or any of its their Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under the other party to such Seller Material Contract, except as would not constitute a Material Adverse EffectContracts.
Appears in 1 contract
Samples: Merger Agreement (Nvest Lp)
Contracts. (a) Except for this Agreement and each Contract filed as an exhibit to the Filed SEC Documents, Section 4.16(a) of the Company Disclosure Letter sets forth a list, as As of the date of this Agreement, of all Material Contracts. For purposes of this Agreement, “Material Contract” means all Contracts to which Agreement neither the Company or nor any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries, or any of their respective properties or assets is bound (other than Company Plans and insurance, reinsurance, or retrocession treaties or agreements, slips, binders, cover notes, or other similar arrangements) thatto:
(i) are or any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relate any Contract that (A) restricts the ability of the Company or any of its Subsidiaries in any material respect to the formation engage or management of compete in any joint venture, partnershipbusiness or to compete with any person in any geographical area, or other similar agreement that by its terms restricts the persons to whom the Company or any of its existing or future Subsidiaries may sell products or deliver services, and (B) is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) provide , except for Indebtedness of any such Contract that may be canceled by the Company, without any material penalty or other liability to the Company or any of its Subsidiaries having an outstanding Subsidiaries, upon notice of 90 days or committed amount equal to or in excess of $10,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiariesless;
(iviii) are any keepwell or loan and credit agreement, mortgage, note, debenture, bond, indenture and other similar agreement under Contract pursuant to which the Company or any of its Subsidiaries has directly guaranteed any liabilities or obligations of another Person or under which another Person has directly guaranteed any liabilities or obligations Indebtedness of the Company or any of its Subsidiaries, in each case involving liabilities or obligations in excess of $10,000,000 (other than 10,000,000, is outstanding or may be incurred, or any contracts under which the Company Contract or a Subsidiary has guaranteed the liabilities or obligations of a wholly owned Subsidiary of the Company);
(v) have been entered into since January 1, 2017, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $10,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made instrument pursuant to the Investment Guidelines, which indebtedness for borrowed money may be incurred or of supplies, products, properties, or other assets in the ordinary course of business or of supplies, products, properties, or other assets that are obsolete, worn out, surplus, or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);
(vi) prohibit the payment of dividends or distributions in respect of the shares or capital stock of is guaranteed by the Company or any of its Subsidiaries, prohibit the pledging of the shares other than any such Contract solely between or capital stock among any of the Company or and any Subsidiary of its Subsidiaries and except for letters of credit entered into in the Company or prohibit the issuance ordinary course of any guarantee by the Company or any Subsidiary of the Companybusiness;
(viiiv) restrict or grant rights to use or practice rights under material Intellectual Property, including agreements providing any Contract that by its terms calls for the creation or development of material Intellectual Property or access and use of hosted Software and licenses to use or practice material Intellectual Property granted aggregate payments by (x) the Company or any of its Subsidiaries to a third Person of more than $10,000,000 in any fiscal year period or (y) a third Person $30,000,000 in the aggregate over the term of such Contract, except for any such Contract that may be canceled by the Company, without any material penalty or other liability to the Company or any of its Subsidiaries, in each case, for aggregate annual upon notice of 90 days or one-time fees in excess of $2,000,000, other than commercially available “off-the-shelf” software licenses under which software is licensed to the Company or any of its Subsidiariesless;
(viii) involve or could reasonably be expected to involve aggregate payments or receipts by or to it and/or its Subsidiaries in excess of $10,000,000 in any twelve month period, other (x) than those terminable on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty, (y) any Company Lease, or (zv) any Contract with financial advisors, investment bankers, attorneys, accountants, consultants, for the acquisition or other advisors in connection with the Transactions;
(ix) would reasonably be expected to, individually or in the aggregate, prevent, materially delay, or materially impede the Company’s ability to consummate the Transactions or Parent’s ability to own and/or conduct the business of the Company or any of its Subsidiaries after the Effective Time;
(x) contain provisions that prohibit the Company or any of its Affiliates from competing in any material line of business or grant a right of exclusivity to any Person that prevents the Company or any Affiliate of the Company from entering any material territory, market, or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) disposition by the Company or any of its Subsidiaries on less of properties or assets for, in each case, aggregate consideration of more than ninety $10,000,000, except for acquisitions of supplies and acquisitions and dispositions of inventory in the ordinary course of business;
(90vi) days’ notice without payment by any Contract that provides for interest rate caps, collars or swaps, currency hedging or any other similar agreement to which the Company or any Subsidiary of its Subsidiaries is a party;
(vii) any Contract that relates to the voting or registration for sale under the Securities Act of any securities of the Company;
(viii) any Contract that is related to the formation, creation, operation or management of any joint venture, partnership or similar arrangement;
(ix) any Contract that grants any put option, call option, right of first refusal or right of first offer or similar right with respect to any assets or businesses of the Company and its Subsidiaries;
(x) any Contract that contains a “most favored nation” or any similar term for the benefit of any material penaltya third party;
(xi) involve the retention of any independent contractor, consultant, Contract with or agency for the provision of services to binding upon the Company with annualized fees in excess or any of $300,000;its Subsidiaries or any of their respective properties or assets that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; or
(xii) constitute collective bargaining agreements;
any Contract that represents any commitment or agreement to enter into any of the foregoing. Each such Contract described in clauses (xiiii) involve the provision of material third-party administration or other policy or claims administration services with respect to through (xii) above, and any Insurance Contracts, or investment management services Contract that by its terms calls for aggregate payments to the Company or any of its Subsidiaries; or
(xiv) provide for Subsidiaries of more than $10,000,000 in any fiscal year period or $30,000,000 in the outsourcing aggregate over the term of such Contract, is referred to herein as a “Specified Contract”. The Company has heretofore delivered or made available to Parent correct and complete copies of each Specified Contract, together with any material function or part and all amendments and supplements thereto. Each of the business of the Company or any of its Subsidiaries that is necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, other than managing agency agreements or managing general underwriting agreements.
(b) As of the date of this Agreement, (i) each Material Contract Specified Contracts is valid and binding on the Company or any the Subsidiary of its Subsidiaries, to the extent such Person is a Company party thereto, as applicable, thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure for such failures to be valid, binding, valid and binding or to be in full force and effect that are not and would not constitute a Material Adverse Effectreasonably be expected to be, (ii) individually or in the aggregate, material to the Company and each of its Subsidiaries, andtaken as a whole. There is no default under any Specified Contract by the Company or any of its Subsidiaries or, to the Knowledge of the Company by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries or, to the Knowledge of the Company, by any other party thereto, has performed all obligations required to be performed by it under in each Material Contract, case except where for such noncompliance defaults and events that are not and would not constitute a Material Adverse Effectreasonably be expected to be, (iii) neither individually or in the aggregate, material to the Company nor any of and its Subsidiaries has received notice of the existence of any event or condition that constitutesSubsidiaries, or, after notice or lapse of time or both, will constitute, taken as a default on the part of the Company or any of its Subsidiaries under any Material Contract, except where such default would not constitute a Material Adverse Effect, and (iv) there are no events or conditions that constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract, except as would not constitute a Material Adverse Effectwhole.
Appears in 1 contract
Samples: Merger Agreement (Laboratory Corp of America Holdings)
