Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”): (i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business; (ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union; (iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K; (iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000; (v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries; (vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person; (vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000; (viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000); (ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business; (x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary; (xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice; (xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking; (xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business; (xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and (xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 5 contracts
Samples: Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Central Pacific Financial Corp), Investment Agreement (Anchorage Capital Group, L.L.C.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) Except for Contracts filed as exhibits to the Investor or its representatives trueFiled SEC Documents, correct as of the date hereof there are no Contracts that are required to be filed as an exhibit to any Filed SEC Document under the Exchange Act and the rules and regulations promulgated thereunder. Except for Contracts filed in unredacted form as exhibits to the Filed SEC Documents, Section 3.01(h) of the Company Disclosure Schedule sets forth a true and complete copies of each of the following list of:
(i) all Contracts to which the Company or any Company Subsidiary of its subsidiaries is a party (eachparty, a “Material Contract”):
(i) any contract or agreement relating that purports to indebtedness for borrowed moneybe binding upon the Company, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company its subsidiaries or any of the Company Subsidiaries is lessee ofits affiliates, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
that contain a covenant (va "Restrictive Covenant") any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, materially restricting the ability of the Company or any of its subsidiaries (or which, following the consummation of the Merger, could materially restrict the ability of Parent or any of its subsidiaries, including the Company Subsidiaries and its subsidiaries) to engage compete in any line of business that is material to the Company and its subsidiaries, taken as a whole, or to competeParent and its subsidiaries, whether by restricting territoriestaken as a whole, customers or otherwise, with any person or in any other material respectgeographic area, with except for any Person;
such Contract (viix) any settlement, conciliation that would not be expected to result in the Company incurring costs or similar agreement, the performance of which will involve payment after the Closing Date of consideration receiving revenues in excess of $500,0005,000,000 per year, (y) that may be canceled without penalty by the Company or any of its subsidiaries upon notice of 60 days or less or (z) the terms and scope (including with respect to any Restrictive Covenants) are customary in the airline industry for Contracts of that type;
(viiiii) any contract or agreement that relates all material joint venture, partnership, business alliance (excluding information technology contracts), code sharing and frequent flyer agreements (including all material amendments to Intellectual Property Rights (other than a license granted to each of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000foregoing agreements);
(ixiii) any contract or agreement all maintenance agreements for repair and overhaul that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating would be expected to result in the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments incurring costs in excess of $500,000 that cannot be cancelled by 10,000,000 per year (including all material amendments to each of the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;foregoing agreements); and
(xiiiv) as of the date hereof, all loan agreements, credit agreements, notes, debentures, bonds, mortgages, indentures and other Contracts pursuant to which any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
indebtedness (xiiiwhich term shall include capital leases and operating leases) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees its subsidiaries is outstanding or may be incurred and consultants, in the ordinary course all guarantees of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of by the Company or any Company Subsidiary to solicit customers of its subsidiaries of any indebtedness of any other person (except for such indebtedness or guarantees of indebtedness the manner in whichaggregate principal amount of which does not exceed $10,000,000), or including the localities in which, all or any portion respective aggregate principal amounts outstanding as of the business date of this Agreement. The Company has previously disclosed to Parent in writing, based upon the assumptions in such writing, the aggregate amount of indebtedness (which shall be deemed solely for purposes of this sentence to consist of capital leases, aircraft operating leases and indebtedness for borrowed money) of the Company or and its subsidiaries (including all guarantees of indebtedness to third parties) as of the Company Subsidiaries is or can be conducted, or (y) right date of first refusal or right of first offer or similar right or that limits or purports to limit the ability this Agreement. None of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) its subsidiaries is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation violation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that (with or without notice or lapse of time or both) under, or has waived or failed to enforce any rights or benefits under, any Contract to which it is a party or by which it or any of its properties or assets is bound, and, to the knowledge of the Company or such subsidiary, no other party to any of its Contracts is in violation or default (with or without notice or lapse of time or both) under, or has waived or failed to enforce any rights or benefits under, and there has occurred no event giving to others any right of termination, amendment or cancelation of, with or without notice or lapse of time or both, any such Contract except, in each case, for violations, defaults, waivers or failures to enforce benefits that individually or in the aggregate would constitute not be expected to result in (taking into account the likelihood of such result occurring and the expected magnitude of such event if it were to occur) a material breach adverse effect. Except as identified in writing by the Company to Parent prior to the date of this Agreement, the Company has delivered or default made available to Parent or permit termination, modification, or acceleration, under its representatives true and complete copies of all Contracts listed on Section 3.01(h) of the Material ContractsCompany Disclosure Schedule.
Appears in 4 contracts
Samples: Merger Agreement (Ual Corp /De/), Merger Agreement (Us Airways Inc), Merger Agreement (Ual Corp /De/)
Contracts. The (a) Except as filed as an exhibit to a Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) SEC Document prior to the Investor or its representatives truedate of this Agreement, correct and complete copies of except for the Company Benefit Plans, each of the following contracts, agreements or arrangements are set forth in Section 3.18(a) of the Company Disclosure Letter:
(i) any agreement relating to indebtedness (other than agreements among direct or indirect wholly owned Company Subsidiaries) in excess of $10 million;
(ii) any joint venture, partnership, limited liability company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iii) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise) exceeding $15 million individually or $30 million in the aggregate for a series of related agreements;
(iv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which the Company or any Company Subsidiary is a party (eachor, a “Material Contract”):
(iafter the Effective Time, the Surviving Corporation or its Subsidiaries) any contract may engage or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien the manner or interest rate or currency hedging agreements (including guarantees locations in respect of which any of the foregoing, but them may so engage in any event excluding trade payables, securities transactions and brokerage agreements arising business in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or is currently engaged including any of the Company Subsidiaries is lessee ofcovenant not to compete, or holds or operates, any property owned by any other Person with annual rent payments in excess that could require the disposition of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company assets or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xiv) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled providing for the production by the Company or a any Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current product on an exclusive or former directors, officers, employees requirements basis or consultants of the purchase by the Company or any Company Subsidiary of the Company Subsidiaries other thanany product on an exclusive or output basis, with respect to non-executive employees and consultants, in each case not entered into in the ordinary course of businessbusiness consistent with past practice;
(xivvi) any contract “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(vii) any agreement that involves expenditures or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability receipts of the Company or any Company Subsidiary in excess of $10 million per year not entered into in the ordinary course of business consistent with past practice;
(viii) any agreement by which the Company or any Company Subsidiary licenses or otherwise obtains the right to solicit customers use material Intellectual Property rights of any other Person (other than licenses for readily available commercial software) or by which the manner Company or any Company Subsidiary is restricted in whichits right to use or register, or licenses or otherwise permits any other Person to use, enforce, or register any material Company Owned Intellectual Property; or
(ix) any agreement the localities termination or breach of which would reasonably be expected to result in whicha Material Adverse Effect on the Company.
(b) The agreements, all or any portion arrangements and plans that are required to be set forth in Section 3.18(a) of the Company Disclosure Letter, or that would be required to be set forth but for the filing thereof as exhibits to the Company SEC Documents, are referred to herein as the “Company Contracts.” Except with respect to matters that, individually or in the aggregate, have not resulted in and would not reasonably be expected to result in a material adverse effect on the business or operations of the Company and its Subsidiaries, each Company Contract is a valid and binding agreement of the Company or a Company Subsidiary, as the Company Subsidiaries is or can be conductedcase may be, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceableeffect, and in full force and effect in all material respects following the consummation none of the transactions contemplated by the Transaction Documents. Neither the Company, any Company nor any of the Company SubsidiariesSubsidiary or, nor to the Knowledge knowledge of the Company, any other party thereto is in default or breach in any material violation respect under the terms of any such Company Contract; and since January 1, 2009, neither the Company nor any Company Subsidiary, as the case may be, has waived any material right or default relinquished any material benefit under any Material such Company Contract. No benefits under any Material Contract will be increased, ; and no vesting event has occurred, which, after the giving of any benefits under any Material Contract will be acceleratednotice, with lapse of time, or otherwise, would constitute a material default by the occurrence of Company or any of the transactions contemplated by the Transaction DocumentsCompany Subsidiary or, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge knowledge of the Company, any other party under such Company Contract. True, correct and complete copies of each of the other parties thereto, such Company Contract (including all modifications and amendments thereto and waivers thereunder) have performed in all material respects all material obligations required been made available to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material ContractsParent.
Appears in 4 contracts
Samples: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copya) Schedule 5.17(a) lists the following written Contracts (collectively, electronic data room or otherwisethe “Material Contracts”) to the Investor or its representatives true, correct and complete copies of each which any member of the following to which the Company or any Company Subsidiary Group is a party (each, a “Material Contract”):and which are currently in effect:
(i) all Contracts that require annual payments or expenses by, or annual payments or income to, any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any member of the foregoing, but in any event excluding trade payables, securities transactions Company Group of $500,000 or more (other than standard purchase and brokerage agreements arising sale orders entered into in the ordinary course of businessbusiness consistent with past practice);
(ii) all sales, intercompany indebtedness advertising, agency, lobbying, broker, sales promotion, market research, marketing or similar contracts and immaterial leases agreements, in each case requiring the payment of any commissions by any member of the Company Group in excess of $500,000 annually;
(iii) all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts with any current or former officer, director, employee or consultant of the Company Group or other Person, under which any member of the Company Group (A) has continuing obligations for telephonespayment of annual compensation of at least $200,000 (other than oral arrangements for at-will employment), copy machines(B) has material severance or post termination obligations to such Person (other than COBRA obligations, facsimile machines or (C) has an obligation to make a payment upon consummation of the transactions contemplated hereby or as a result of a change of control of any member of the Company Group;
(iv) all Contracts creating a material joint venture, material strategic alliance, material limited liability company and other office equipmentpartnership agreements;
(v) all Contracts relating to any material acquisitions or dispositions of assets in excess of $500,000;
(vi) all Contracts for material licensing agreements, except for those issued including Contracts licensing Intellectual Property Rights, other than (i) “shrink wrap” licenses, and (ii) non-exclusive licenses granted in the ordinary course of business;
(iivii) all Contracts relating to material secrecy, confidentiality and nondisclosure agreements materially restricting the conduct of any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any member of the Company Subsidiaries is lessee of, Group or holds or operates, substantially limiting the freedom of any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any member of the Company Subsidiaries is lessor of, or permits any Person Group to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage compete in any line of business or to competebusiness, whether by restricting territories, customers or otherwise, with any Person or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000geographic area;
(viii) any contract or agreement that relates all Contracts relating to material patents, trademarks, service marks, trade names, brands, copyrights, trade secrets and other material Intellectual Property Rights (other than a license granted to of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Group;
(ix) all Contracts providing for material guarantees, indemnification arrangements and other hold harmless arrangements made or provided by any contract or agreement that concerns the sale or acquisition of any material portion member of the Company’s business;Company Group, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar obligations
(x) all Contracts with or pertaining to any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing member of profits or losses relating to the Company or Group to which any Company SubsidiaryAffiliate is a party;
(xi) all Contracts relating to property or assets (whether real or personal, tangible or intangible) in which any contract or agreement involving annual member of the Company Group holds a leasehold interest (including the Leases) and which involve payments to the lessor thereunder in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice100,000 per month;
(xii) all Contracts relating to outstanding Indebtedness, including financial instruments of indenture or security instruments (typically interest-bearing) such as notes, mortgages, loans and lines of credit, except any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingsuch Contract with an aggregate outstanding principal amount not exceeding $1,000,000;
(xiii) any contract or agreement with respect Contract relating to the employment voting or service control of the equity interests of any current or former directors, officers, employees or consultants member of the Company Group or the election of directors of any member of the Company Subsidiaries (other than, with respect to non-executive employees and consultants, in than the ordinary course Organizational Documents of businessthe Company Group);
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in whichContract that can be terminated, or the localities in which, all or any portion provisions of which are altered so that the purpose of the business of the Company or the Company Subsidiaries is or can Contract cannot be conductedachieved, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Agreement or any of the Additional Agreements; and
(xv) any Contract for which any of the benefits, compensation or payments (Aor the vesting thereof) is legalwith respect to a director, valid and binding on the officer, employee or consultant of a member of Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) Group will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following increased or accelerated by the consummation of the transactions contemplated by hereby or the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation amount or default under any Material Contract. No benefits under any Material Contract value thereof will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by this Agreement.
(b) Except as set forth on Schedule 5.17(b), (i) each Material Contract is a valid and binding agreement, is in full force and effect, and neither any member of the Transaction DocumentsCompany Group nor, to the Company’s knowledge, any other party thereto, is in material breach or material default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract, (ii) no member of the Company Group has assigned, delegated, or otherwise transferred any of its rights or obligations with respect to any Material Contracts, or granted any power of attorney with respect thereto, (iii) no Contract (A) requires any member of the Company Group to post a bond or deliver any other form of security or payment to secure its obligations thereunder or (B) imposes any non-competition covenants that may be binding on and materially restrict the Business or require any payments by or with respect to the SPAC, any of its Affiliates, or the transactions contemplated hereby. The Company has previously provided to the SPAC true, correct, complete and fully executed copies of each Material Contract.
(c) Except as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, none of the execution, delivery or performance by any member of the Company Subsidiaries, and Group of this Agreement or any Additional Agreements to the Knowledge which such member of the Company, each Company Group is a party or the consummation by any member of the other parties theretoCompany Group of the transactions contemplated hereby or thereby constitutes a default under or gives rise to any right of termination, have performed cancellation or acceleration of any obligation of the Company or to a loss of any material benefit to which the Company Group is entitled under any provision of any Material Contract.
(d) Each member of the Company Group is in compliance in all material respects with all material obligations required to be performed by them under each Material Contractcovenants and all financial covenants in all notes, indentures, bonds and other instruments or agreements evidencing any Indebtedness.
(e) Each of the material transactions between any member of the Company Group and any Shareholder, officer, employee or director of any member of the Company Group or any Affiliate of any such Person (if any) entered into or occurring prior to the Knowledge Closing (i) is arms-length transaction with fair market price and does not impair the interests of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modificationShareholders, or acceleration, under (ii) is transaction duly approved by the Material Contractsboard of directors in accordance with the Organizational Documents of such member of the Company Group (if applicable).
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Nukkleus Inc.), Agreement and Plan of Merger (Brilliant Acquisition Corp), Merger Agreement (Nukkleus Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Section 4.14(a) of the Company Disclosure Letter lists the following contracts to which any of the Company or any Company Subsidiary the Subsidiaries is a party (each, a “Material Contract”):or by which it is bound:
(i) any contract (or agreement relating group of related contracts) involving the performance of services or the purchase of goods, materials or other assets by or to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingSubsidiaries, but in any event excluding trade payables, securities transactions the performance of which will involve (A) annual payments to or from the Company and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess Subsidiaries of $500,000250,000 or more, except for those issued in or (B) aggregate payments (including termination penalties) to or from the ordinary course Company and the Subsidiaries of business$1,000,000 or more;
(ii) any contract concerning a partnership, limited liability company or agreement that constitutes a collective bargaining or other arrangement with any labor unionjoint venture;
(iii) any contract (or agreement that is a “material contract” within the meaning group of Item 601(b)(10related contracts) under which it has (x) created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of Regulation S-K$500,000 or (y) imposed an Encumbrance on any of its assets, tangible or intangible;
(iv) any lease contract concerning confidentiality or agreement noncompetition or that limits or otherwise restricts the Company or any of the Subsidiaries or that would, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of the Subsidiaries or any successor thereto or any of their respective Affiliates, from engaging or competing in any line of business or in any geographic area, including any contract containing any "radius clause" applicable to markets in which the Company has operations;
(v) any contract relating to collective bargaining or employee association;
(vi) any contract for the employment of any individual on a full-time, part-time, consulting, or other basis who is an officer or director of the Company or any of the Subsidiaries or any Affiliate of any of them, or that provides for annual compensation in excess of $100,000 or any severance benefits;
(vii) any contract under which the Company or any of the Subsidiaries has advanced or loaned any amount to any of its directors, officers or employees;
(viii) any contract under which the consequences of a default or termination could reasonably be expected to have a Company Subsidiaries is lessee of, or holds or operates, any property owned by Material Adverse Effect;
(ix) any other Person with annual rent payments contract (or group of related contracts) the performance of which involves aggregate consideration in excess of (A) $500,000250,000 or more annually, or (B) $1,000,000 or more in the aggregate;
(vx) any lease contract that relates to any proposed Acquisition Proposal as to which discussions have not been terminated prior to the date of this Agreement, including all commitments containing confidentiality, standstill, non-solicitation or agreement under similar provisions;
(xi) any contract to which the Company or any of the Company Subsidiaries is lessor of, has continuing indemnification obligations or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticepotential liability;
(xii) any material hedgecontract providing for the sale or exchange of, collaror option to sell or exchange, optionany Property, forward purchasingor for the purchase or exchange of, swapor option to purchase or exchange, derivative or similar agreement, understanding or undertakingany real estate;
(xiii) any contract for the acquisition or agreement with respect to the employment disposition, directly or service indirectly (by merger or otherwise), of any current assets or former directorsEquity Interests of another person for aggregate consideration in excess of $500,000, officers, employees or consultants of the Company or any of the Company Subsidiaries in each case other than, with respect to non-executive employees and consultants, than in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation pursuant to which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of manages any material assets or business; andreal property;
(xv) any material advertising or other promotional contract providing for payment by the Company or agreement that would require any consent Subsidiary of $250,000 or approval of a counterparty as a result more;
(xvi) any license, royalty or other contract concerning Intellectual Property (other than shrink-wrap software and databases licensed to the Company or to any of the consummation Subsidiaries under nonexclusive software licenses granted to end-user customers by third parties in the ordinary course of business of such third parties' businesses), such Company Disclosure Letter indicating, in the case of any such license, whether the Company or any of the transactions contemplated by this AgreementSubsidiaries is the licensee or licensor; and
(xvii) each amendment, supplement and modification (whether written or oral) in respect of any of the foregoing.
(b) The Company has made available to Parent a correct and complete copy of each written contract listed in Section 4.14(a) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral contract referred to in Section 4.14(a) of the Company Disclosure Letter. Each Material Contract With respect to each such contract (Aexcept as set forth in Section 4.14(a) of the Company Disclosure Letter): (i) the contract is legal, valid valid, binding, enforceable, and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and effect; (Cii) the contract will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other Effective Time; (iii) no party thereto is in material violation breach or default under any Material Contract. No benefits under any Material Contract will be increaseddefault, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse the passage of time or giving of notice would constitute a material breach or default default, or permit termination, modification, or acceleration, under the Material Contractscontract; and (iv) no party has repudiated any provision of the contract.
Appears in 4 contracts
Samples: Merger Agreement (Horowitz Seth), Merger Agreement (Everlast Worldwide Inc), Merger Agreement (Everlast Worldwide Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Section 2.16(a) of the Disclosure Schedule (with paragraph references corresponding to the Investor or its representatives true, correct those set forth below) contains a true and complete copies list of each 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 Parent prior to the execution of this Agreement) to which the Company Company, Galaxy Mall or any Company Subsidiary IMI is a party (each, a “Material Contract”):or by which any of their Assets and Properties are bound:
(i) any contract (A) all Contracts (excluding Plans and Benefit Programs or agreement Agreements) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise relating to indebtedness for borrowed moneyemployment or the termination of employment of, letters any Employee, the name, position and rate of creditcompensation of each Employee party to such a Contract and the expiration date of each such Contract exceeding $50,000; and (B) any written or unwritten representations, capital lease obligationscommitments, obligations secured by a Lien promises, communications or interest rate courses of conduct (excluding Plans and Benefit Programs or currency hedging agreements Agreements and any such Contracts referred to in clause (including guarantees in respect of any A)) involving an obligation of the foregoingCompany, but Galaxy Mall or IMI to make payments in any event excluding trade payablesyear, securities transactions and brokerage agreements arising other than with respect to salary or incentive compensation payments in the ordinary course of business, intercompany indebtedness to any Employee exceeding $100,000 or any group of Employees exceeding $100,000 in the aggregate;
(ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company, Galaxy Mall or IMI to engage in any business activity or compete with any Person in connection with the Business or prohibiting or limiting the ability of any Person to compete with the Company, Galaxy Mall or IMI in connection with the Business;
(iii) all partnership, joint venture, shareholders' or other similar Contracts with any Person in connection with the Business;
(iv) all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom the Company, Galaxy Mall or IMI deals in connection with the Business;
(v) all Contracts relating to the future disposition or acquisition of any Assets and immaterial leases for telephonesProperties, copy machines, facsimile machines and other office equipment) in excess than dispositions or acquisitions of $500,000, except for those issued inventory in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement business consistent with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariespast practice;
(vi) all collective bargaining or similar labor Contracts covering any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any PersonEmployee;
(vii) any settlement, conciliation all other Contracts (other than Plans and Benefit Programs or similar agreementAgreements, the performance Real Property Leases and insurance policies listed in Section 2.18 of which will the Disclosure Schedule and those Contracts listed on Section 2.15 or 2.17 of the Disclosure Schedule) with respect to the Business that (A) involve the payment or potential payment, pursuant to the terms of any such Contract, by or to Galaxy Mall or IMI of more than $25,000 annually and (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in any material cost or penalty to the Closing Date of consideration in excess of $500,000;Company, Galaxy Mall or IMI; and
(viii) without limiting any contract of the foregoing, all Contracts relating to any strategic alliance with another Person, including, without limitation, Earthlink, Professional Marketing International, United Marketing Solutions, and International Television Products. Notwithstanding the foregoing, the Company represents and warrants that it or agreement that relates its Subsidiaries have entered into approximately 40,000 Contracts with online merchants and, with the consent of Parent, will not be required to Intellectual Property Rights (other than a license granted list each such Contract on the Disclosure Schedule unless any such Contract, individually, is material to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract Business or agreement that concerns the sale or acquisition of any material portion Condition of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing . The Company has hereto furnished to Parent representative examples of profits or losses relating to all of the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess types of $500,000 that cannot be cancelled online merchant Contracts presently used by the Company or a its Subsidiaries. The Company Subsidiary without penalty further represents and warrants that IMI has entered into approximately 100 customer Contracts and, with the consent of Parent, will not be required to list each such Contract on not more than 90 days’ notice;the Disclosure Schedule unless any such Contract, individually, exceeds $10,000.
(xiib) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiiiEach Contract required to be disclosed in Section 2.16(a) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) Disclosure Schedule is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms terms, of each party thereto, except as enforcement thereof may be limited by (i) Laws of general application relating to bankruptcy, insolvency moratorium, reorganization or other similar Laws, both state and federal, affecting the enforcement of creditors' rights or remedies in general, and (Cii) will continue to be legalrules of Law governing specific performance, valid, binding, enforceable, injunctive relief and other equitable remedies; and except as disclosed in full force and effect in all material respects following the consummation Section 2.16(b) of the transactions contemplated by Disclosure Schedule, neither the Transaction Documents. Neither the Company Company, Galaxy Mall nor any of the Company SubsidiariesIMI nor, nor to the Knowledge of the Company, Galaxy Mall or IMI, any other party thereto is to such Contract is, or has received notice that it is, in material violation or breach of or default under any Material Contract. No benefits under any Material such Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that (or with notice or lapse of time or both, would constitute a material be in violation or breach of or default under any such Contract) in any material respect.
(c) Except as disclosed in Section 2.16(c) of the Disclosure Schedule, (i) the execution, delivery and performance by the Company of this Agreement, and the consummation of the transactions contemplated hereby, will not (A) result in or permit give to any Person any right of termination, modificationcancellation, 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 acceleration(C) result in the creation or imposition of any Lien upon the Company, under Galaxy Mall or IMI or any of their Assets and Properties under, any Contract, and (ii) Company, Galaxy Mall, and IMI are not parties to or bound by any Contract that has been or could reasonably be expected to be, individually or in the Material aggregate with any other Contracts, materially adverse to the Business or Condition of the Company, Galaxy Mall, or IMI.
Appears in 3 contracts
Samples: Merger Agreement (Netgateway Inc), Merger Agreement (Netgateway Inc), Merger Agreement (Galaxy Enterprises Inc /Nv/)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Section 3.11(a) of the Company Disclosure Schedule lists the following to which the Company or Contracts in effect as of the date of this Agreement (other than any Company Subsidiary is a party Benefit Plan) (each, a “Company Material Contract”):
(i) any a material contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees as defined in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-KK as promulgated under the Securities Act;
(ivii) any lease each Contract that is material to the business or agreement under which the Company or any operations of the Company Subsidiaries is lessee ofand its Subsidiaries, or holds or operatestaken as a whole, any property owned by any other Person with annual rent payments in excess of $500,000;
containing (vA) any lease or agreement under which covenant limiting the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability freedom of the Company or any of the Company its Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
, (viiB) any settlement“most-favored nations” pricing provisions or marketing or distribution rights related to any products or territory, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viiiC) any contract or agreement that relates to Intellectual Property Rights exclusivity provision, (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ixD) any contract agreement to purchase minimum quantity of goods or agreement that concerns the sale services, or acquisition of (E) any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating non-solicitation provisions applicable to the Company or any Company Subsidiaryof its Subsidiaries;
(xiiii) any contract or agreement involving annual each Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $500,000 that can50,000 pursuant to its express terms and not be cancelled by the Company or a Company Subsidiary cancelable without penalty on not more than 90 days’ noticepenalty;
(xiiiv) each Contract relating to the disposition or acquisition of material assets or any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingownership interest in any entity;
(xiiiv) each Contract relating to any contract mortgages, indentures, loans, notes or agreement with respect credit agreements, security agreements or other agreements or instruments relating to the employment or service of any current or former directors, officers, employees or consultants material Indebtedness of the Company or any of the Company its Subsidiaries other than, or creating any material Liens with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability assets of the Company or any of its Subsidiaries;
(vi) each Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $100,000 pursuant to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Contracts entered into in the Ordinary Course of Business;
(vii) each Company Real Estate Lease;
(viii) each Contract with any Governmental Entity;
(ix) each Company Out-bound License and Company In-bound License;
(x) each Contract that is legal, valid and binding on material to the business or operations of the Company and its Subsidiaries, taken as a whole, containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; or
(xi) any other Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries which are a party to after the date of this Agreement under any such contractContract of more than $100,000 in the aggregate, or obligations after the date of this Agreement in excess of $200,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries, taken as a whole.
(b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all material amendments thereto, but excluding any purchase orders issued under a Company Material Contract in full force and effect and enforceable the Ordinary Course of Business. There are no Company Material Contracts that are not in accordance with written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries or, to the Company’s Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms and (C) will continue or conditions of, or Laws applicable to, any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be legalmaterial to the Company or its business or operations. As to the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable, enforceable and in full force and effect in all material respects following effect, subject to the consummation of Bankruptcy and Equity Exception. Since the transactions contemplated by the Transaction Documents. Neither the Company nor any date of the Company SubsidiariesBalance Sheet, nor no counterparty to a Company Material Contract has notified the Company in writing (or, to the Knowledge of the Company, any other party thereto is in material violation otherwise) that it intends to terminate or default under any not renew a Company Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 3 contracts
Samples: Merger Agreement (Advaxis, Inc.), Merger Agreement (Advaxis, Inc.), Merger Agreement (Ayala Pharmaceuticals, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000250,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000250,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000250,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000250,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 250,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not or without more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documentsthis Agreement, except in the cases of (B) and (C) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsthis Agreement, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documentsthis Agreement. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 3 contracts
Samples: Subscription Agreement, Subscription Agreement (FNB United Corp.), Subscription Agreement (FNB United Corp.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each Section 3.19 of the Seller Disclosure Schedule lists the following contracts and other agreements to which the Company or any Company Subsidiary Seller is a party or is bound in connection with the Business on the date hereof and identifies each such contract (eachif any) in which (i) an officer, director, member, manager or employee of Seller or (ii) an Affiliate of Seller has or holds (directly or indirectly) a “Material Contract”material interest (and Seller will update the Schedule as necessary at least five (5) days prior to Closing):
(i) any contract agreement (or agreement relating group of related agreements), for the lease of personal property to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of from any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessPerson;
(ii) any contract agreement (or agreement that constitutes a collective bargaining group of related agreements) requiring capital expenditures or for the purchase or sale of raw materials, commodities, supplies, products or other arrangement with any labor unionpersonal property, or for the furnishing or receipt of services (including advertising and marketing services), the performance of which will extend over a period of more than 30 days, result in a loss to Seller, or involve consideration in excess of $100,000;
(iii) any contract agreement concerning a partnership or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kjoint venture;
(iv) any lease agreement (or agreement group of related agreements) under which the Company Seller has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any of the Company Subsidiaries is lessee ofcapitalized lease obligation, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000500,000 or under which it has granted a Lien with respect to any of the Acquired Assets;
(v) any lease agreement concerning confidentiality or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesnoncompetition;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personcollective bargaining agreement;
(vii) any settlement, conciliation or similar agreement, agreement for the performance employment of which will involve payment after the Closing Date of consideration any Key Business Employee providing annual salary (excluding bonus) in excess of $500,00050,000 or providing severance benefits;
(viii) any contract agreement under which Seller has advanced or agreement that relates loaned any amount to Intellectual Property Rights (other than a license granted to any of the Company for commercially available software licensed on standard terms with a total replacement cost Business Employees or Key Business Employees outside the Ordinary Course of less than $500,000)Business;
(ix) any contract agreement under which the consequences of a default or agreement that concerns termination could have a materially adverse effect on the sale financial condition, operations, results of operations or acquisition of any material portion future prospects of the Company’s businessBusiness;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing letters of profits or losses relating intent with respect to the Company or any Company Subsidiary;construction and/or establishment of contemplated Restaurants; and
(xi) any contract other agreement (or agreement involving group of related agreements) the performance of which involves annual payments consideration in excess of $500,000 that cannot be cancelled by 250,000. Seller has delivered to Purchaser a correct and complete copy of each written agreement listed in Section 3.19 of the Company or Seller Disclosure Schedule and a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or written summary setting forth the terms and conditions of each oral agreement with referred to in Section 3.19 of the Seller Disclosure Schedule. With respect to the employment or service of any current or former directors, officers, employees or consultants each such agreement that is listed in Section 3.19 of the Company or any Seller Disclosure Schedule, except as described in Section 3.19 of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract Seller Disclosure Schedule: (A) the agreement is legal, valid valid, binding, enforceable and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and was entered into on an arms length basis; (CB) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the CompanySeller, any other no party thereto is in material violation breach or default under any Material Contract. No benefits under any Material Contract will be increaseddefault, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that which with notice or lapse of time would constitute a material breach or default default, or permit termination, modification, modification or acceleration, under the Material Contractsagreement; and (C) to the Knowledge of Seller, no party has repudiated any provision of the agreement.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Ruths Hospitality Group, Inc.), Asset Purchase Agreement (Ruths Chris Steak House, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Except for the Investor or its representatives true, correct contracts and complete copies of each agreements described in Schedule 5.11 of the following to which Parent Disclosure Schedule (collectively, the Company or any Company Subsidiary "PARENT MATERIAL CONTRACTS"), neither Parent nor the Parent Subsidiaries is a party to or bound by the following contracts (each, a “which for purposes of this Agreement shall be deemed Parent Material Contract”Contracts):
(i) any distribution or software manufacturer's representative contract that represents ten percent (10%) or agreement relating to indebtedness for borrowed money, letters more of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessParent's combined annual revenues;
(ii) any contract for the provision of software, outsourcing or agreement that constitutes a collective bargaining consulting services or other arrangement with computer hardware, including contracts billed on time plus materials and fixed-price contracts involving in the case of any labor unionsuch contact more than $3,000,000 per annum;
(iii) any contract related to the provision of services to early-stage entities in consideration for, among other things, equity interests in such entities, along with any subscription or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kagreements with respect to investments in such entities and instruments or securities evidencing such equity interests, including any warrants or options;
(iv) any lease hedging arrangements, including any puts or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000call options;
(v) any lease trust indenture, mortgage, promissory note, loan agreement or agreement under which other contract for the Company borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the Company Subsidiaries is lessor of, or permits any Person type required to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesbe capitalized in accordance with US GAAP;
(vi) any contract or agreement limiting, for capital expenditures in excess of $3,000,000 in the aggregate;
(vii) any contract limiting in any material respect, respects the ability freedom of the Company Parent or any of the Company Subsidiaries Parent Subsidiary to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in compete with any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract pursuant to which the Parent or agreement that relates to Intellectual Property Rights (any Parent Subsidiary is a lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or other than a license granted to personal property involving in the Company for commercially available software licensed on standard terms with a total replacement cost case of less any such contract more than $500,000)3,000,000 in any calendar year;
(ix) any contract with any Person (other than the Parent or agreement that concerns any Parent Subsidiary) with whom the sale Parent or acquisition of any material portion Parent Subsidiary does not deal at arm's length within the meaning of the Company’s businessCode;
(x) any allianceagreement of guarantee, cooperationsupport, joint ventureindemnification, shareholdersassumption or endorsement of, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person; or
(xi) any contract or agreement involving annual payments relating to the acquisition of a business for aggregate consideration in excess of $500,000 that cannot be cancelled by 1,000,000 entered into in the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;last three years.
(xiib) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants Parent and each Parent Subsidiary has performed all of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contractit and is entitled to all benefits under, and to the Knowledge of Parent, is not alleged to be in default in respect of any Parent Material Contract. Each of the CompanyParent Material Contracts is in full force and effect, unamended, and there exists no default or event has occurred that of default or event, occurrence, condition or act, with notice respect to Parent or any Parent Subsidiary or to the Knowledge of Parent with respect to the other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or conditions, would constitute become a material breach or default or permit terminationevent of default under any Parent Material Contract. True, modification, correct and complete copies of all Parent Material Contracts have been delivered or acceleration, under the Material Contractsmade available to Company.
Appears in 2 contracts
Samples: Merger Agreement (Ness Technologies Inc), Merger Agreement (Sapiens International Corp N V)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Schedule 6.11(a) of the Investor or its representatives true, correct and complete copies of each Disclosure Schedules contains a list of the following Contracts to which any of the Company or any Company Subsidiary Entities is a party (each, a “Material Contract”):or by which any of the Company Entities is bound:
(i) any contract each Contract with a Significant Customer (as defined herein below), Significant Supplier (as defined herein below) and each other Contract that involves performance of services or agreement relating delivery of goods or materials by or to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course Company Entities of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) an amount or value in excess of $500,000, except for those issued in the ordinary course of business750,000;
(ii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionof the Company Entities in excess of $100,000;
(iii) each Contract affecting the ownership of, leasing of, title to, use of or any contract leasehold or agreement that is other interest in any real or personal property (excepting personal property leases and installment and conditional sales agreements having a “material contract” within the meaning value per item or aggregate payments of Item 601(b)(10less than $100,000 and with a term of less than one (1) of Regulation S-Kyear);
(iv) each Contract with any lease labor union or agreement under which the Company or any other employee representative of the Company Subsidiaries is lessee ofa group of employees relating to wages, or holds or operates, any property owned by any hours and other Person with annual rent payments in excess conditions of $500,000employment;
(v) any lease each partnership, joint venture or agreement under which the Company other Contract involving a sharing of profits, losses, costs or liabilities by any of the Company Subsidiaries is lessor of, or permits Entities with any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesother Person;
(vi) any contract or agreement limiting, each Contract containing covenants that in any material respect, the ability of the Company or way purport to restrict any of the Company Subsidiaries Entity’s (A) business activity, (B) freedom to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person, including any Contracts requiring such Company Entity to maintain an exclusive relationship or requiring such Company Entity to not to compete or to not to solicit in any manner, (C) ability to increase prices to a customer of the Business, or (D) operation of the Business;
(vii) each Contract providing for payments to or by any settlementPerson based on sales, conciliation purchases or similar agreementprofits, other than direct payments for goods in the performance Ordinary Course of which will involve payment after the Closing Date of consideration in excess of $500,000Business;
(viii) each power of attorney (or similar grant of authority) of any contract or agreement that relates to Intellectual Property Rights (other than a license granted to of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Entities that is currently effective and outstanding;
(ix) each Contract that contains or provides for an express undertaking by any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s businessCompany Entities be responsible for consequential damages or indemnification obligations;
(x) each Contract for capital expenditures in excess of $100,000 for any alliance, cooperation, joint venture, shareholders, partnership item or similar agreement involving a sharing of profits or losses relating to $250,000 in the Company or any Company Subsidiaryaggregate;
(xi) each executive employment Contract that provides for employment of senior executives or management personnel by any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company Entities on a full-time, part-time or a Company Subsidiary without penalty on not more than 90 days’ noticeother basis;
(xii) each Contract for any material hedge, collar, option, forward purchasing, swap, derivative independent contractor or similar agreement, understanding or undertakingconsultant providing services to any of the Company Entities;
(xiii) any contract each written warranty, guaranty or agreement other similar undertaking with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or contractual performance executed by any of the Company Subsidiaries Entities other than, with respect to non-executive employees and consultants, than in the ordinary course Ordinary Course of businessBusiness;
(xiv) any contract Contract relating to the acquisition or agreement containing disposition, directly or indirectly, of any (x) non-competition or exclusive dealing obligations business, Real Property or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in whichassets, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose Equity Interests of any material assets or business; andother Person;
(xv) any material contract Contract relating to Indebtedness, the borrowing of money, or agreement that would 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, letters of credit, advances, and agreements and instruments for or relating to any lending or borrowing;
(xvi) any Contract under which the execution and delivery of this Agreement or any Ancillary Document may cause a default, give rise to any right of termination, cancellation or acceleration, or require any consent Consent;
(xvii) any Contract involving the settlement, release, compromise or approval waiver of a counterparty as a result any material rights, claims, obligations, duties or liabilities;
(xviii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks;
(xix) any Contract with any Related Parties;
(xx) any Contract involving any ownership, right to use, use, infringement or any claim, liability or obligation with respect to any Intellectual Property;
(xxi) any other material Contract of any of the consummation Company Entities, whether or not entered into in the Ordinary Course of Business, which shall include, without limitation, any Contract that requires payment by any Company Entity(ies) in excess of $500,000 in any twelve (12) month period that cannot be terminated on less than ninety (90) days’ notice without the payment of any termination fee, premium or penalty; and
(xxii) each amendment, supplement and modification (whether oral or written) in respect of any of the transactions contemplated by this Agreement. Each foregoing.
(b) Except as set forth in Schedule 6.11(b) of the Disclosure Schedules: (i) each Contract identified or required to be identified in Schedule 6.11(a) of the Disclosure Schedules (the “Company Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (BContracts”) is in full force and effect and is valid and enforceable in accordance with its terms; (ii) each Company Entity is in compliance with all applicable terms and requirements of each Material Contract; (Ciii) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the CompanyCompany Entities, no other party to any Company Material Contract is in default thereunder; (iv) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with or result in a Breach of, or give any Company Entity or any other party thereto is in the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Company Material Contract; and (v) no Company Entity has waived any material violation or default right under any of the Company Material ContractContracts or modified any material terms thereof. There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any of the Company Entities under current or completed Company Material Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation. No benefits under party to any Company Material Contract will be increasedhas exercised any acceleration, cancellation, termination or modification rights with respect thereto, and no vesting of party to any benefits under any Company Material Contract will be accelerated, by the occurrence of or other Person has notified any of the transactions contemplated by the Transaction Documents, nor will the value Company Entities of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and its intention to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractsdo so.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (SeqLL, Inc.), Agreement and Plan of Reorganization (SeqLL, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each of the following to which Except as set forth in the Company or Disclosure Schedule corresponding to this Section 3.13(a), neither the Company nor any Company Subsidiary is a party to or bound by any of the following Contracts (eachcollectively, a the “Material ContractContracts”):
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any Contract that expressly and materially limits the ability of the foregoing, but Company or any Company Subsidiary to compete in or conduct any line of business or compete with any Person or in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course geographic area or during any period of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesstime;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement Contract with any labor unionunion or labor association representing any employee of the Company or any Company Subsidiary;
(iii) any contract Contract for the acquisition or agreement that is sale of any assets or securities of any Person having a “material contract” within the meaning fair market value in excess of Item 601(b)(10) of Regulation S-K$1,000,000;
(iv) any lease or agreement under which Contract relating to the incurrence of Indebtedness (other than borrowings between the Company and any of its wholly-owned Subsidiaries or between any of the Company Subsidiaries is lessee of, or holds or operates, any property Company’s wholly-owned by any other Person with annual rent payments Subsidiaries) involving amounts in excess of $500,000;
(v) any lease or agreement under Contract pursuant to which the Company or any Company Subsidiary has any payment obligations (whether contingent or otherwise) that could arise after the date of the Company Subsidiaries is lessor ofTeam Balance Sheet in respect of earn-outs, deferred purchase price arrangements, indemnities or permits any Person to hold similar arrangements that have arisen in connection with investments in or operate, any property owned acquisitions or controlled by the Company dispositions of companies or any of the Company Subsidiariesbusinesses;
(vi) any contract or agreement limitingMaterial Contract providing for future payments that are conditioned upon, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, whole or in any other material respectpart, with any Persona change of control or similar event;
(vii) any settlement, conciliation material joint venture or partnership agreement or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000Contract;
(viii) any contract or agreement that relates to Intellectual Property Rights Contract containing any material restrictions on acquisitions of the equity of the counterparty thereto;
(ix) other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost any Contract involving consideration of less than $500,000);
, (ixA) any contract Contract granting or agreement that concerns the sale obtaining any right to use or acquisition practice any rights under any material Company Intellectual Property or material intellectual property of any other Person (other than licenses for off-the-shelf-standard commercially available software), (B) any material portion of the Company’s businessinformation technology service Contract and (C) any material intellectual property outsourcing Contract;
(x) other than any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing Contracts with physicians that are not employees of profits or losses relating to the Company or any Company Subsidiary;
(xi) , any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgeemployment, collarconsulting, option, forward purchasing, swap, derivative severance or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment any employee, independent contractor or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability consultant of the Company or any Company Subsidiary whose current annual cash compensation is in excess of $300,000 that is not terminable by the Company or such Company Subsidiary by notice of not more than 180 days for a cost of less than $200,000;
(xi) any Contract restricting the payment of dividends or other distributions; and
(xii) any Contracts relating to solicit customers the leasing of any real or the manner in whichpersonal property providing for annual rentals of $250,000 or more.
(b) Except as would not have a Material Adverse Effect, or the localities in whicheach Material Contract is a valid, all or any portion of the business binding and enforceable obligation of the Company or a Company Subsidiary, as the Company Subsidiaries case may be, and, to the Knowledge of the Company, is or can be conductedin full force and effect, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability and none of the Company or any of the Company Subsidiaries to ownSubsidiary or, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is, or is alleged in writing to be, in violation, default or breach in any material violation or default respect under any Material Contract. No benefits under any Material Contract will be increased, and no vesting the terms of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documentssuch Contract. The Company and the Company Subsidiaries, and has made available to Purchaser prior to the Knowledge date hereof true and correct copies of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts, including all amendments and supplements thereto.
Appears in 2 contracts
Samples: Merger Agreement (Team Health Inc), Merger Agreement (Erie Shores Emergency Physicians, Inc.)
Contracts. The Company has Previously Disclosed provided to each Investor that has made a request (including via access in any virtual data room) or provided (by hard copy, electronic data room or otherwise) to the Investor or its such Investor’s representatives true, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party party, each of which has been Previously Disclosed (each, a “Material Contract”):
(i) any contract or agreement relating to indebtedness of the Company or any Company Subsidiary for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course Ordinary Course of businessBusiness, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000300,000, except for those issued in the ordinary course Ordinary Course of businessBusiness;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ixiii) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(xiv) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xiv) any contract or agreement involving annual payments in excess of $500,000 300,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 60 days’ notice;
(xiivi) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiiivii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course Ordinary Course of business;Business; and
(xivviii) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documentsthis Agreement. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsthis Agreement, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documentsthis Agreement. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Professional Holding Corp.), Stock Purchase Agreement (Professional Holding Corp.)
Contracts. The Company has Previously Disclosed Schedule 3.24 lists all written or provided oral contracts, agreements, guarantees, leases and executory commitments (by hard copy, electronic data room or otherwiseeach a "CONTRACT") to the Investor or its representatives true, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating to indebtedness for borrowed money, letters as of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect the date of this Agreement and which fall within any of the foregoingfollowing categories: (a) contracts not entered into in the ordinary course of the Company's or any of its Subsidiary's business; (b) joint venture, but in any event partnership and like agreements; (c) Contracts which are service contracts (excluding trade payables, securities transactions and brokerage agreements arising contracts for delivery services entered into in the ordinary course of business, intercompany indebtedness and immaterial ) or equipment leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent involving payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any Subsidiary of more than $250,000 per year, (d) Contracts containing covenants purporting to limit the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability freedom of the Company or any Subsidiary of the Company Subsidiaries to engage compete in any line of business in any geographic area or to competehire any individual or group of individuals, whether by restricting territories, customers (e) Contracts which contain minimum purchase conditions or otherwise, requirements or in any other material respect, with any Person;
(vii) any settlement, conciliation terms that restrict or similar agreement, limit the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants purchasing relationships of the Company or any Subsidiary of the Company Subsidiaries other thanCompany, with respect (f) Contracts relating to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability outstanding commitment for capital expenditures of the Company or any Subsidiary of the Company in excess of $50,000, (g) indentures, mortgages, promissory notes, loan agreements, guarantees, in each case involving amounts in excess of $50,000, letters of credit or other agreements or instruments of the Company or any Subsidiary to solicit customers of the Company or commitments for the borrowing or the manner lending of amounts, in whicheach case in excess of $50,000, or by the localities in which, all Company or any portion Subsidiary of the Company or providing for the creation of any charge, security interest, encumbrance or lien upon any of the assets of the Company or any Subsidiary of the Company, (h) Contracts relating to the lease or sublease of or sale or purchase of real or personal property involving any annual expense or price in excess of $50,000 and not cancelable by the Company or any Subsidiary (without premium or penalty) within one month, (i) Contracts involving annual revenues or expenditures to the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability any Subsidiary of the Company in excess of 1.0% of the Company's consolidated annual revenues, and (j) Contracts providing for "earn-outs" or any other contingent payments involving more than $20,000 over the term of the Contract. All such Contracts are valid and binding obligations of the Company Subsidiaries and its Subsidiaries, as applicable, and, to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result the knowledge of the consummation of Company, the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding obligation of each other party thereto except such Contracts which if not so valid and binding would not, individually or in the aggregate, have a Material Adverse Effect on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation Company. None of the transactions contemplated by the Transaction Documents. Neither the Company nor Company, any Subsidiary of the Company Subsidiariesnor, nor to the Knowledge knowledge of the Company, any other party thereto is in material violation of or in default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsin respect of, nor will has there occurred any event or condition which with the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse passage of time or giving of notice (or both) would constitute a material breach default under, any such Contract except such violations or default defaults under such Contracts which, individually or permit terminationin the aggregate, modification, or acceleration, under would not have a Material Adverse Effect on the Material ContractsCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Phoenix International Life Sciences Inc), Merger Agreement (Chrysalis International Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Other than Contracts that are reasonably expected to expire prior to the Investor Closing without any liability on the part of the Company or its representatives any Acquired Company, Schedule 3.7 constitutes a true, correct and complete copies list of the following Contracts relating to the Business to which any Acquired Company is a party or by which any of its assets relating to the Business is bound (each of Contract so listed or required to be so listed being a “Major Contract”) and each Major Contract is listed under a heading in Schedule 3.7 that corresponds with the applicable clause among the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):such Major Contract relates:
(i1) each Contract regarding any contract employment, severance or change-of-control (excluding the Company’s standard forms of offer letter and separation agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising used in the ordinary course Ordinary Course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentBusiness) in excess of $500,000, except for those issued in the ordinary course of business(each such contract indicated on Schedule 3.7 as such is an “Executive Employment Agreement”);
(ii2) each covenant not to compete that restricts in any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionrespect the operation of the Business as presently conducted;
(iii3) any contract each operating lease (as lessor or agreement that is a “material contract” within the meaning of Item 601(b)(10lessee) of Regulation S-Ktangible personal property;
(iv4) each Contract to pay or receive any royalty or license fee or to license (either as licensor or licensee) any lease or agreement under material Intellectual Property (other than any non-exclusive license for the use of any commercially available off-the-shelf software which was entered into in the Company or any Ordinary Course of Business of the Company Subsidiaries is lessee ofAcquired Company);
(5) each Contract regarding any management, personal service or holds consulting or operates, any property owned by any other Person with annual rent similar type of Contract involving payments in excess of $500,000100,000 in any calendar year (other than those that are or on the Closing Date will be terminable at will or upon not more than 30 days’ notice by the applicable Acquired Company without any Liability to the applicable Acquired Company, except Liability with respect to services rendered before the termination thereof);
(v6) each Contract for the purchase by any Acquired Company of any supply or product (except those entered into in the Ordinary Course of Business on an order-by-order basis where the amount thereof is less than $100,000 per Contract);
(7) each mortgage agreement, deed of trust, security agreement, purchase money agreement, conditional sales contract, capital lease or agreement under which the other similar Contract created or assumed by, or permitted to be created by written document made or accepted by, any Acquired Company or any of the Company Subsidiaries is lessor ofsale-leaseback arrangement pertaining to any real property or to equipment (other than any purchase money agreement, conditional sales contract, capital lease or permits any Person to hold or operate, any other similar Contract evidencing Encumbrances only on tangible personal property owned or controlled by the Company or any of the Company Subsidiariesunder which there exists an aggregate future Liability less than $100,000 per Contract);
(vi8) each Contract under which any Acquired Company is obligated to repay or has guaranteed any outstanding Indebtedness for borrowed money or remains obligated to lend to or make any investment in (in the form of a loan, capital contribution or otherwise) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii9) each Contract under which any settlement, conciliation Acquired Company has advanced or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000loaned money to any other Person;
(viii10) each outstanding power of attorney with respect to any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Acquired Company;
(ix11) each lease or sublease (whether as lessor or lessee) for the use or occupancy of real property by any Acquired Company;
(12) each Contract requiring any Acquired Company to reimburse any maker of a letter of credit or banker’s acceptance;
(13) each partnership, joint venture or similar Contract of any Acquired Company;
(14) each Contract, other than any Contract of a nature described in clause (1) or (5) above, with any Affiliate of (A) any contract Acquired Company or agreement that concerns the sale (B) any officer, director, governor or acquisition manager of (or any person holding a similar position with) any Acquired Company;
(15) each Contract with any distributor or broker of any product or service offered by any Acquired Company;
(16) each Contract containing any form of most-favored pricing provision in favor of any supplier or customer of any Acquired Company;
(17) other Contract that is material portion to any Acquired Company; and
(18) each other Contract not entered into in the Ordinary Course of Business of any Acquired Company.
(b) The Company has made available to Buyer a true, correct and complete copy of each Major Contract and copies of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing standard form of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with offer letter. With respect to the employment or service of any current or former directorseach Major Contract, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv1) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material such Major Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contractbinding, (B) is in full force and effect and enforceable (except to the extent enforceability may be limited by any Enforcement Limitation) in accordance with its terms and (C) will continue to be legalagainst the Applicable Acquired Company and, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any against each other party thereto thereto, (2) the Applicable Acquired Company is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasednot and, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each no other party thereto is in material breach of the or default under such Major Contract and no party thereto has given to any other parties theretoparty thereto written notice alleging that such a breach or default occurred, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and (3) to the Knowledge of the Company, no event has occurred that (with notice or lapse without the passage of time or giving of notice) would constitute a material breach or default of, or permit termination, modification, acceleration or accelerationcancellation of, such Major Contract or of any material right or Liability thereunder, (4) the Company has not waived any material right under such Major Contract, (5) no party to such Major Contract has terminated, modified, accelerated or canceled such Major Contract or any material right or Liability thereunder or communicated in writing such party’s desire or intent to do so, (6) the Material ContractsCompany has not received any prepayment under such Major Contract for any service that has not been fully performed or good that has not been supplied (other than as is fully reflected in the financial records of the Company and will be included within the calculation of the Final Net Book Value Amount) and (7) if the parties to such Major Contract are performing under terms that have expired by the express terms of such Major Contract, then Schedule 3.7 identifies such expiration and describes the material terms under which such parties continue to perform.
(c) In the case of each value added reseller agreement and original equipment manufacturer agreement, Schedule 3.7 indicates in each instance any such Contracts which materially deviate from one of the Company’s standard value added reseller agreements and standard original equipment manufacturer agreement. Aside from such descriptions on Schedule 3.7, each value added reseller agreement and original equipment manufacturer agreement does not materially deviate from the Company’s standard value added reseller agreement and standard original equipment manufacturer agreements.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Imation Corp), Agreement and Plan of Merger (Imation Corp)
Contracts. The (a) Section 3.8(a) of the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies Disclosure Schedule sets forth a list of each of the following contracts that are in force and effect as of the date of this Agreement to which the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):party:
(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);
(ii) each contract that 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 to make use of any material IP Rights, develop market or distribute material products or services or compete with any Person;
(iii) each contract granting any exclusive rights or otherwise limiting the right of the Company or any of its Subsidiaries to sell, distribute or manufacture any material products or services or to purchase or otherwise obtain any material Software, components, parts, subassemblies or services;
(iv) each indemnification, employment, severance or change of control contract with any director or officer of the Company or its Subsidiaries or with any employee or consultant of the Company or its Subsidiaries providing for an annual base salary or annual consulting fee to such employee or consultant of $300,000 or more in fiscal year 2007 (other than offer letters with employees providing for at-will employment);
(v) each collective bargaining agreement, memorandum of understanding, settlement or other labor agreement relating with any union or labor organization applicable to the Company or its Subsidiaries;
(vi) each loan or credit agreement, mortgage, note or other contract evidencing indebtedness for money borrowed by the Company or any of its Subsidiaries from a third party lender and each contract pursuant to which any such indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured money is guaranteed by a Lien the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event its Subsidiaries;
(vii) each customer or supply contract (excluding trade payables, securities transactions and brokerage agreements arising purchase orders given or received in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) under which the Company or any Subsidiary of the Company paid to or received from such customer or supplier in excess of $500,0002,000,000 in fiscal year 2006;
(viii) each material contract to license to any third party to manufacture or reproduce any of the products, except services or technology of the Company or any of its Subsidiaries or any material contract to sell or distribute any of the products, services or technology of the Company or any of its Subsidiaries;
(ix) each operating system software license or other contract with the top two providers (as measured by fees paid under such contracts) in fiscal 2006 pursuant to which the Company licenses operating system software for those issued use in its end-user products;
(x) each contract with the top two providers (as measured by fees paid under such contracts) in fiscal 2006 pursuant to which the Company purchases microprocessors;
(xi) each contract with the top five third-party manufacturers (as measured by fees paid under such contracts) in fiscal 2006 pursuant to which such Company products (or subassemblies thereof) are manufactured;
(xii) each material contract containing any support, service or maintenance obligation on the part of the Company or any of its Subsidiaries outside of the ordinary course of business consistent with past practice;
(xiii) each Real Property Lease;
(xiv) each lease or rental contract involving personal property (and not relating primarily to real property) pursuant to which the Company or any of its Subsidiaries is required to make rental payments in excess of $250,000 per year;
(xv) each contract relating to a joint venture, partnership or other strategic arrangement involving a sharing of material costs, profits or losses with another Person;
(xvi) each contract which would reasonably be expected to prohibit or delay the consummation of any material transaction contemplated in this Agreement;
(xvii) each material agreement that includes the grant to the Company or any of its Subsidiaries of a license or cross-license to material IP Rights owned by a third party and that is not a standard license agreement for a commercially available product;
(xviii) any material agreement pursuant to which the Company or any of its Subsidiaries have continuing obligations to jointly develop any material item of IP Right;
(xix) each material contract to provide source code to any third party for any material product or technology of the Company or its Subsidiaries;
(xx) each material contract for indemnification or any guaranty by the Company or any of its Subsidiaries other than any agreement of indemnification entered into in connection with the sale or license of the Company’s or any of its Subsidiaries’ products in the ordinary course of business;
(iixxi) each contract relating to the disposition or acquisition by the Company or any contract of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business, or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under pursuant to which the Company or any of the Company its Subsidiaries is lessee ofhas any material ownership interest or a right to any ownership interest, or holds or operates, any property owned by in any other Person with annual rent payments in excess of $500,000or other business enterprise other than the Company’s Subsidiaries;
(vxxii) any lease each material contract which grant or agreement under benefit a right of first refusal or first offer or similar rights;
(xxiii) each agreement, contract or commitment pursuant to which the Company or any of the Company its Subsidiaries is lessor of, or permits obligated to pay in the future in excess of $1,000,000 in any Person to hold or operate, any property owned or controlled one-year period which is not terminable by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company its Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration without penalty in excess of $500,000100,000 upon notice of 30 days or less, other than any agreement, contract or commitment to purchase inventory in the ordinary course of business consistent with past practice;
(viiixxiv) any each material “single source” supply contract pursuant to which goods or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating materials are supplied to the Company or any Subsidiary of the Company Subsidiaryfrom an exclusive source;
(xixxv) each material contract which following the Offer or the Merger that would by its terms contain a material restriction on sales in any contract jurisdiction or agreement involving annual payments which by its terms would impose any material financial obligation, in excess of $500,000 that cannot be cancelled by each case, on the Parent or its Affiliates (other than the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeand its Subsidiaries);
(xiixxvi) each material executory settlement agreement entered into within three years prior to the date of this Agreement; and
(xxvii) any contract, or group of contracts with a Person (or group of affiliated Persons), not described in clauses (i) through (xxvi) above the termination or breach of which would be reasonably expected to have a material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) adverse effect on any contract or agreement with respect to the employment material product or service of any current or former directors, officers, employees or consultants offerings of the Company or any its Subsidiaries or otherwise have a Company Material Adverse Effect.
(b) Each contract listed in Section 3.8(a) of the Company Subsidiaries other than, with respect Disclosure Schedule is referred to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability as a “Material Contract”. Each of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries Material Contracts is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and or the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any Subsidiary of the Company Subsidiaries, nor to the Knowledge of the Company, any other that is a party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedand, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each other party thereto, and is in full force and effect.
(c) There is no existing breach or default on the part of the other parties theretoCompany or any of its Subsidiaries under any Material Contract except for breaches and defaults that do not constitute a Company Material Adverse Effect and, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, there is no existing breach or default on the part of any other Person under any Material Contract except for breaches and defaults that do not constitute a Company Material Adverse Effect. No event has occurred that that, with notice or lapse of time time, would constitute a material breach or default by the Company or any of its Subsidiaries, or permit termination, modification, material modification or acceleration, under the any Material ContractsContract, except for breaches and defaults that do not constitute a Company Material Adverse Effect.
(d) The Company has made available to Parent correct and complete copies of each Material Contract, together with all amendments and supplements thereto.
Appears in 2 contracts
Samples: Merger Agreement (Gateway Inc), Merger Agreement (Acer Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copya) As of the date of this Agreement, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the Company’s “material contracts” (as defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) (each, a “Filed Company Contract”) has been filed with the SEC.
(b) Section 4.14(b) of the Company Disclosure Schedule sets forth, as of the date of this Agreement, a true and complete list of the following types of Contracts to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):as of the date of this Agreement:
(i) each Contract that restricts in any contract material respect the ability of the Company or agreement relating any Company Subsidiaries to indebtedness for borrowed moneycompete in any material line of business or geographic area and that is material to the Company and the Company Subsidiaries, letters taken as a whole;
(ii) each Contract pursuant to which any amount of credit, capital lease obligations, obligations secured by a Lien Indebtedness of the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingCompany Subsidiaries in excess of $2,000,000 is outstanding or may be incurred by its terms, but other than any such Contract 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 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 event excluding trade payablesentity or business enterprise other than the Company Subsidiaries or securities of a publicly-traded company held for investment by the Company or any Company Subsidiaries;
(iv) other than any Contracts filed as exhibits (including exhibits incorporated by reference) to any Filed Company SEC Documents), securities transactions and brokerage agreements arising in each material Contract between the Company or any of its Subsidiaries, on the one hand, and, on the other hand, any (A) present executive officer or director of either the Company or any of the Company Subsidiaries, (B) record or beneficial owner of more than 5% of the shares of Common Stock outstanding as of the date of such Contract, or (C) to the Knowledge of the Company, any Affiliate of any such executive officer, director or record or beneficial owner of more than 5% of the shares of Common Stock outstanding as of the date hereof (other than the Company or any of the Company Subsidiaries);
(v) each Contract relating to the disposition or acquisition by the Company or any of the Company Subsidiaries of any material business or any material amount of assets outside the ordinary course of business, intercompany indebtedness and immaterial leases for telephonesin each case, copy machines, facsimile machines and other office equipment) in excess with material obligations remaining to be performed after the date of $500,000, except for those issued in the ordinary course of businessthis Agreement;
(iivi) other than Contracts for ordinary repair and maintenance, each Contract providing for the development or construction of, or additions or expansions to, any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement real property, under which the Company or any of the Company Subsidiaries is lessee ofhas, or holds or operatesexpects to incur, any property owned by any other Person with annual rent payments an obligation in excess of $500,0003,000,000 in the aggregate;
(vvii) other than Contracts described in the foregoing Section 4.14(b)(vi), any Contract that obligates the Company or any of the Company Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person (other than the Company or any Company Subsidiary), in each case, in excess of $2,000,000;
(viii) any lease Contract that grants any right of first refusal, right of first offer or agreement under similar right with respect to any securities, material assets, material rights or material properties of the Company or any Company Subsidiary;
(ix) any Contract (each a “Management Agreement”) whereby the Company or any Company Subsidiary manages any material real property owned or partially owned by a third party and to which the Company or any Company Subsidiary is a party or by which any of them is bound; and
(x) any Contract with a supplier of the Company or any Company Subsidiary (excluding insurance providers and providers of legal services) that represented at least $600,000 in total spend by the Company and the Company Subsidiaries, on a consolidated basis, during the twelve (12)-month period ended April 30, 2019, other than purchase orders, sales orders and similar Contracts.
(c) The Company has made available to Parent prior to the date of this Agreement a complete and correct copy of each Material Contract (including all amendments, modifications, extensions, and renewals thereto and waivers thereunder) as in effect on the date of this Agreement. Except as would not be material to the Company and the Company Subsidiaries, taken as whole, (i) each Material Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the Company, of the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization 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 the Company Subsidiaries is lessor of(with or without notice or lapse of time, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(viboth) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation breach or default under any Material Contract. No benefits under any such Material Contract will be increasedand, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that other party to any such Material Contract is (with or without notice or lapse of time would constitute a material time, or both) in breach or default thereunder, except, in the case of clauses (i) or permit termination(ii), modificationwith 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 in the ordinary course of business consistent with past practice. Except as would not be material to the Company and the Company Subsidiaries, taken as whole, the Company has not received, as of the date of this Agreement, any notice in writing from any Person that such Person intends to terminate, or accelerationnot renew, under the any Material ContractsContract.
Appears in 2 contracts
Samples: Merger Agreement (Peak Resorts Inc), Merger Agreement (Vail Resorts Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives Schedule 4.14(a) sets forth a true, correct complete and complete copies accurate list, as of each the date of this Agreement, of all of the following Contracts as amended to date which the Company or any Company Subsidiary is a party are currently in effect (eachcollectively, a “Material ContractContracts”):
(i) any contract all Contracts that require annual payments or agreement relating to indebtedness for borrowed moneyexpenses incurred by, letters or annual payments or income to, the Company Group of credit, capital lease obligations, obligations secured by a Lien US$200,000 or interest rate or currency hedging agreements more (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions other than standard purchase and brokerage agreements arising sale orders entered into in the ordinary course of businessbusiness consistent with past practices) including sales, intercompany indebtedness advertising, agency, sales promotion, market research, marketing or similar contracts;
(ii) each Contract with any current employee of the Company Group (A) which has continuing obligations for payment of an annual compensation of at least US$200,000, and immaterial leases which is not terminable for telephonesany reason or no reason upon reasonable notice without payment of any penalty, copy machines, facsimile machines and severance or other office equipmentobligation; (B) providing for severance or post-termination payments or benefits to such employee in excess of $500,000US$60,000 (other than COBRA obligations or similar requirements under applicable local Law); or (C) providing for a payment or benefit in excess of US$60,000 upon the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement or as a result of a change of control of the Company;
(iii) all Contracts creating a joint venture, except for those issued strategic alliance, limited liability company or partnership arrangement to which a member of the Company Group is a party;
(iv) all Contracts relating to any acquisitions or dispositions of assets of value in excess of US$100,000 by the Company Group (other than acquisitions or dispositions of inventory in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement business consistent with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000past practices);
(v) any lease or agreement all IP Contracts, separately identifying all such IP Contracts under which the Company or any of is obligated to pay royalties thereunder and all such IP Contracts under which the Company Subsidiaries is lessor of, or permits any Person entitled to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesreceive royalties thereunder;
(vi) any contract or agreement limiting, in any material respect, all Contracts limiting the ability freedom of the Company or any of the Company Subsidiaries Group to engage compete in any line of business or to competeindustry, whether by restricting territories, customers or otherwise, with any Person or in any other material respect, with any Persongeographic area;
(vii) any settlementall Contracts providing for guarantees, conciliation indemnification arrangements and other hold harmless arrangements made or provided by the Company, including all ongoing agreements for repair, warranty, maintenance, service, indemnification or similar agreementobligations, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000other than Standard Contracts;
(viii) any contract all Contracts with or agreement that relates to Intellectual Property Rights (other than a license granted pertaining to the Company for commercially available software licensed Group to which any Affiliate of the Company Group is a party, other than any Contracts relating to such Affiliate’s status as a Company Securityholder or Contracts entered into on standard arms’ length terms with a total replacement cost of less than $500,000)by which any Company Group company provides goods or services to any other Company Group company;
(ix) any contract all Contracts relating to property or agreement that concerns assets (whether real or personal, tangible or intangible) in which the sale or acquisition Company Group holds a leasehold interest (including the Lease) and which involve payments to the lessor thereunder in excess of any material portion of the Company’s businessUS$200,000 per year;
(x) any alliance, cooperation, joint venture, shareholders, partnership all Contracts creating or similar agreement involving a sharing of profits or losses otherwise relating to outstanding Indebtedness (other than intercompany Indebtedness) in the Company aggregate that are valued at US$250,000 or any Company Subsidiarygreater;
(xi) any contract all Contracts relating to the voting or agreement involving annual payments in excess control of $500,000 that cannot be cancelled by the equity interests of the Company Group or a the election of directors of the Company Subsidiary without penalty on not more Group (other than 90 days’ noticethe organizational or constitutive documents of the Company Group);
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingall Contracts not cancellable by the Company Group with no more than ninety (90) days’ notice if the effect of such cancellation would result in monetary penalty to the Company Group in excess of US$200,000 per the terms of such Contract;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in whichall Contracts that may be terminated, or the localities in whichprovisions of which may be altered, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Agreement or any Ancillary Agreement and which constitute Material Contract Contracts as defined by the other subsections of this Section 4.14(a);
(Axiv) is legalall Contracts under which any of the benefits, valid and binding on compensation or payments (or the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (Cvesting thereof) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following increased or accelerated by the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement, or the Transaction Documentsamount or value thereof will be calculated on the basis of, the transactions contemplated by this Agreement or any Ancillary Agreement; and
(xv) all collective bargaining agreements or other agreement with a labor union, labor organization or works council or other representative of a group of employees.
(b) Each Material Contract is (i) a valid and binding agreement, (ii) in full force and effect and (iii) enforceable by and against the Company Group and, to the Company’s Knowledge, each counterparty that is party thereto, subject, in the case of this clause (iii), to the Enforceability Exceptions. Neither the Company nor any of the Company SubsidiariesGroup nor, nor to the Knowledge of the Company’s Knowledge, any other party thereto to a Material Contract is in material violation breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. No benefits The Company Group has not assigned, delegated or otherwise transferred any of its rights or obligations under any Material Contract will be increasedor granted any power of attorney with respect thereto.
(c) The Company Group is in compliance in all material respects with all covenants, including all financial covenants, in all notes, indentures, bonds and no vesting of other instruments or Contracts establishing or evidencing any benefits under any Material Contract will be accelerated, by the occurrence of any Indebtedness. The consummation and closing of the transactions contemplated by the Transaction Documents, nor will the value this Agreement shall not cause or result in an event of any of the benefits default under any Material Contract be calculated on the basis of instruments or Contracts establishing or evidencing any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material ContractsIndebtedness.
Appears in 2 contracts
Samples: Merger Agreement (IX Acquisition Corp.), Merger Agreement (Aerkomm Inc.)
Contracts. The Company has Previously Disclosed (a) Except as disclosed in the SEC Reports filed with or provided (by hard copy, electronic data room or otherwise) furnished to the Investor SEC on or its representatives trueafter June 14, correct and complete copies of each 2011 or as set forth in Section 3.16(a) of the following Company Disclosure Letter, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) any agreement which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating of its Subsidiaries was required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of file as an exhibit under Item 601(b)(10) of Regulation S-KK under the Exchange Act or to disclose on a Current Report on Form 8-K that has not been so filed or disclosed;
(ii) any agreement or arrangement that limits or otherwise restricts in any material respect the Company or any of its Affiliates or any successor thereto, or that could, after the Effective Time, limit or restrict in any material respect the Surviving Corporation or any of its Affiliates or any successor thereto, from engaging or competing in any line of business or in any geographic area in any manner or restricting the Company or any of its Subsidiaries from freely setting prices for its products (including “most favored customer” pricing provisions);
(iii) any other agreement pursuant to which the Company or any of its Subsidiaries is required to pay or is scheduled to receive (assuming full performance pursuant to the terms thereof) $150,000 or more during the 12-month period following the date of this Agreement;
(iv) with respect to a joint venture, partnership, limited liability company or other similar agreement or arrangement, any lease 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;
(v) any indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage, trust deed or other written agreement for or with respect to the borrowing of money, a line of credit, any currency exchange, commodities or other hedging arrangement, or a leasing transaction of a type required to be capitalized in accordance with GAAP;
(vi) any written agreement under which the Company or any of the Company its Subsidiaries is lessee of, has advanced or holds or operates, any property owned by loaned any other Person with annual rent payments amounts in the aggregate exceeding $25,000;
(vii) any agreement or arrangement involving the acquisition from another Person or disposition to another Person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another Person (A) for aggregate consideration under such contract (or series of related contracts) in excess of $500,000100,000 or (B) that contain representations, warranties, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations), that are still in effect and, individually, would reasonably be expected to result in payments by the Company or any of its Subsidiaries in excess of $100,000 (in the case of each of clause (A) and (B), other than acquisitions or dispositions of inventory in the ordinary course of business);
(vviii) any lease contracts (or a series of related contracts) for the purchase of materials, supplies, goods, services, equipment or other assets providing for either (A) annual payments by the Company and its Subsidiaries of $150,000 or more or (B) aggregate payments by the Company and its Subsidiaries of $200,000 or more, in each case other than (I) those that can be terminated by the Company or any of its Subsidiaries on less than thirty-one (31) days’ notice without payment by the Company or any Subsidiary of any material penalty and (II) contracts entered into by the Company and its Subsidiaries in the ordinary course of business consistent with past practice;
(ix) any contracts that are sales, distribution or other similar contracts providing for the sale by the Company or any Subsidiary of materials, supplies, goods, services, equipment or other assets that provide for either (a) annual payments to the Company and its Subsidiaries of $150,000 or more or (b) aggregate payments to the Company and its Subsidiaries of $200,000 or more, in each case other than (I) those that can be terminated by the Company or any of its Subsidiaries on less than 61 days’ notice without payment by the Company or any Subsidiary of any material penalty and (II) contracts entered into in the ordinary course of business consistent with past practice;
(x) any agreement or arrangement that would prohibit or materially delay or have a Material Adverse Effect on the Merger and the transactions contemplated hereby;
(xi) any contract relating to any currency hedging;
(xii) any agreement or arrangement prohibiting the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly owned Subsidiaries, prohibiting the pledging of the capital stock of the Company or any wholly owned Subsidiary of the Company or prohibiting the issuance of any guaranty by the Company or any wholly owned Subsidiary of the Company;
(xiii) any license agreements from which the Company and its Subsidiaries, taken as a whole, have received or paid $150,000 or more during the 12-month period ending with the most recent month end preceding the date of this Agreement, pursuant to which the Company or any of its Subsidiaries licenses in Intellectual Property or licenses out Intellectual Property owned by the Company or its Subsidiaries;
(xiv) any written agreement that provides for the payment, increase or vesting of any benefits or compensation in connection with the Merger and the transactions contemplated hereby;
(xv) any written agreement (A) that provides compensation, severance or other benefits or rights to any individual (including to any officer, director, employee or consultant) who currently receives annual compensation from the Company and/or any of its Subsidiaries of more than $100,000 or (B) pursuant to which the Company is or may become obligated to make any bonus or similar payment (whether in the form of cash or equity securities but excluding payments constituting base salary) to any individual (including to any officer, director, employee or consultant) who currently receives annual compensation from the Company and/or any of its Subsidiaries of more than $100,000;
(xvi) Any written agreement that contains a put, call, collar, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person;
(xvii) any material settlement agreement or similar written agreement and any settlement agreement or similar written agreement with a Governmental Entity, in each case, under which the Company or any of the Company its Subsidiaries is lessor ofhas continuing obligations, liabilities or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesduties;
(vixviii) any contract written agreement that grants exclusive rights, rights of refusal, rights of first negotiation or agreement limiting, similar rights to any Person or that limits or purports to limit in any material respect, respect the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material assets asset or business; and;
(xvxix) any material contract written agreement relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of its capital stock or other securities or any options, warrants or other rights to purchase or otherwise acquire any such shares of capital stock, other securities or options, warrants or other rights therefor, except for those written agreements in substantially the form of the standard agreements evidencing Stock Options or Company Awards provided or made available to Parent;
(xx) any written agreement under which the Company has granted any Person any registration rights or under which any Person has granted the Company any registration rights; or
(xxi) any other written agreement or group of related written agreements with the same party or group of affiliated parties (other than this Agreement or agreements between the Company and any of its Subsidiaries or between any of the Subsidiaries of the Company) under which any party to such written agreement or group of related written agreements is obligated to make payments (whether fixed, contingent or otherwise) in excess of $150,000 per annum or $250,000 during the life of the written agreement or group of written agreements.
(b) Except for guarantees related to the Indebtedness relating to any written agreement set forth in Section 3.16(a)(v) above, neither the Company nor any of its Subsidiaries is a party to any written agreement of guarantee, support, or assumption with respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person.
(c) Except as set forth in the Company Financial Statements, neither the Company nor any of its Subsidiaries is a party to any written agreement for or relating to the employment by it of any director, employee or officer or other type of written agreement with any of its directors or officers that would require is not terminable by it without cost or other liability, including any consent written agreement requiring it to make a payment to any director, employee or approval of a counterparty officer as a result of the consummation of the transactions contemplated by Merger, any transaction or any written agreement that is entered into in connection with this Agreement. Each Material Contract .
(Ad) is legal, valid and binding on Except as set forth in the Company and Financial Statements, neither the Company nor any of its Subsidiaries which are is a party to such contractany written agreement in which its officers, directors, employees or shareholders or any members of their immediate families is directly or indirectly interested (Bwhether as a party or otherwise), including, without limitation, any written agreements relating to loans to officers, directors, employees or shareholders or any members of their immediate families.
(e) is All Company Contracts are in full force and effect and enforceable written form or summarized in accordance with its terms and (CSection 3.16(e) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction DocumentsCompany Disclosure Letter. The Company has delivered or made available to Parent a true, correct and complete written copy of each Company Contract, including all amendments thereto. Neither the Company nor any of its Subsidiaries is in material default under any Company Contract and no event has occurred with respect to the Company or any of its Subsidiaries or, to the Company’s Knowledge, with respect to any other contracting party, that (with or without the lapse of time or the giving of notice, or both) could reasonably be expected to (i) cause a material default under any Company Contract or (ii) give any party (A) the right to accelerate the maturity or performance of any material obligation of the Company or any of its Subsidiaries under any Company Contract, or (B) the right to cancel or terminate any Material Contract. Each of the Company Contracts is, and after the consummation of the transactions will continue to be, in full force and effect and is the valid, binding and enforceable obligation of the Company and its Subsidiaries, nor and, to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed except that (x) such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws, now or hereafter in all material respects all material obligations required effect, affecting creditors’ rights generally and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to be performed by them under each Material Contract, equitable defenses and to the Knowledge discretion of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractscourt before which any proceeding therefor may be brought.
Appears in 2 contracts
Samples: Merger Agreement (Frederick's of Hollywood Group Inc /Ny/), Merger Agreement (FOHG Holdings, LLC)
Contracts. The (a) For purposes of this Agreement, a “Company has Previously Disclosed Material Contract” is any Company Agreement, whether or provided not set forth in Section 3.13 of the Company Disclosure Schedule, which, as of the date hereof, (by hard copy, electronic data room i) is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (ii) that involves aggregate revenues or otherwiseexpenditures in excess of $1,000,000 per year; (iii) that involves revenues or expenditures in excess of $500,000 per year and was not entered into in the ordinary course of business; (iv) that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Investor Company or its representatives trueany Company Subsidiary, correct and complete copies or which restricts the conduct of each any line of business by the following to Company or any Company Subsidiary, or any geographic area in which the Company or any Company Subsidiary may conduct business, in each case in any material respect; (v) that is a party Clinical Contract that involves aggregate expenditures in excess of $1,000,000 per year; (eachvi) with any vendor that provides billing and reimbursement services valued in excess of $500,000 during any year; (vii) is with any payor from which the Company, a “Material Contract”):
(i) any contract Company Subsidiary or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees any Hospice has received payments in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) 2009 in excess of $500,000, except for those issued in the ordinary course of business;
; (iiviii) any contract or agreement that constitutes a collective bargaining or other arrangement is with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under supplier to which the Company, any Company Subsidiary or any Hospice has made payments in 2009 in excess of $1,000,000; (ix) which would prohibit or materially delay the consummation of the Merger or any of the Company Subsidiaries other Transactions; (x) is lessee of, with any current or holds former Key Personnel; (xi) is with any labor union or operates, association representing any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability employee of the Company or any of the Company Subsidiaries to engage in and any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
collective bargaining agreement (vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
there are none), (viiixii) any contract or agreement that relates to Intellectual Property Rights (other than is a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses joint-venture agreement; (xiii) relating to the Company borrowing of money (including any guarantee thereto) or any Company Subsidiary;
(xi) any contract that is a mortgage, security agreement, capital lease or agreement involving annual payments similar agreements, in each case in excess of $500,000 or that cannot be cancelled by creates a Lien on any material asset of the Company or any of the Company Subsidiaries; (xiv) for the license or sublicense (whether as a Company Subsidiary without penalty on licensor or a licensee) of any Intellectual Property or other intangible asset (excluding commercial off-the-shelf or shrink wrap software than has not been modified or customized), that provides for payment or receipt of $500,000 or more than 90 days’ notice;
per year; (xiixv) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect relating to the employment or service sale of any current of the material assets or former directors, officers, employees or consultants properties of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, than in the ordinary course of business;
business or for the grant to any Person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties; (xivxvi) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports relating to limit or restrict in any respect the ability of acquisition by the Company or any of the Company Subsidiary to solicit customers Subsidiaries of any operating business or the manner capital stock of any other Person; (xvii) requiring the payment to any Person of a material commission or fee, except in whichthe ordinary course of business consistent with past practice; (xviii) that, in the case of a Company Benefit Plan, any of the benefits of which would be increased, or the localities in which, all or any portion vesting of the business benefits of which would be accelerated, by the occurrence of any of the Company Transactions, or the Company Subsidiaries is or can value of any benefits which would be conducted, calculated on the basis of any of the Transactions; or (yxix) right that is an insurance policy providing for indemnification of first refusal any officer or right of first offer or similar right or that limits or purports to limit the ability director of the Company or any of the Company Subsidiaries to ownSubsidiaries, operateother than the Company Governing Documents; provided, sellhowever, transfer, pledge or otherwise dispose that the foregoing definition of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Company Material Contract (A) is legalshall not include any leases, valid subleases and binding on other occupancy or use agreements concerning the real property leased by the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor or any of the Company Subsidiaries, nor to including the Knowledge Material Company Leases (collectively, the “Company Leases”).
(b) As of the Companydate hereof, there is no Company Agreement (other than the Company Leases), any other of the benefits to any party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract of which will be increased, and no or the vesting of the benefits to any benefits under any Material Contract party of which will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will Transactions or the value of any of the benefits under to any Material Contract party of which will be calculated on the basis of any of the transactions contemplated by Transactions (except as disclosed pursuant to Section 3.11). As of the Transaction Documents. The date hereof, each Company Material Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s knowledge, as of the date hereof, each other party thereto, as applicable, and in full force and effect, and the Company Subsidiariesand each Company Subsidiary has performed in all respects all obligations required to be performed by it under each Company Material Contract, and except any failure of performance that would not have or be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect and, to the Knowledge Company’s knowledge, as of the Companydate hereof, each of the other parties thereto, have party to each Company Material Contract has performed in all material respects all material obligations required to be performed by them it under each such Company Material Contract, and except as would not have or be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date hereof, none of the Company or any Company Subsidiary knows of, or has received notice of, any violation or default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under) any Company Material Contract except for violations or defaults that would not have or be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has delivered to Parent or provided or made available to Parent for review, prior to the Knowledge execution of this Agreement, true and complete copies of all of the Company Material Contracts required to be disclosed in Section 3.13 of the Company Disclosure Schedule, which are not filed as exhibits to the Company SEC Documents, and the Company Material Contracts required to be disclosed in Section 3.13 of the Company Disclosure Schedule filed as exhibits to the Company SEC Documents are true and complete copies of such contracts.
(c) As of the date hereof, none of the Company, no event any Company Subsidiary or any Hospice has occurred received any written notice from any Person supplying products, materials or drugs to the Company, any Company Subsidiary or any Hospice that with notice such Person intends to (i) cease selling such products, materials or lapse of time would constitute a material breach drugs to the Company, any Company Subsidiary or default any Hospice, (ii) limit or permit terminationreduce such sales to the Company, modificationany Company Subsidiary or any Hospice, or acceleration(iii) increase the prices at which such sales are made to the Company, under any Company Subsidiary or any Hospice, except for any such cessation, limitation, reduction or increase that would not have or be reasonably likely to have, individually or in the aggregate, a Company Material ContractsAdverse Effect. As of the date hereof, none of the Company, any Company Subsidiary or any Hospice has received any written notice from any third-party payor that it intends to terminate, limit or reduce its business relations with the Company, any Company Subsidiary or any Hospice in the event of a sale of the Company or otherwise except as would not have or be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Gentiva Health Services Inc), Merger Agreement (Odyssey Healthcare Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) SCHEDULE 3.08(A) to the Investor Company Disclosure Schedule and the Company SEC Documents contain a complete and accurate list, and the Company has delivered or its representatives true, correct made available to Veeco true and complete copies (or, in the case of oral Contracts, summaries), of:
(i) each Contract that is executory in whole or in part and involves performance of the following to which services or delivery of goods or materials by the Company or any Company Subsidiary is a party (each, a “Material Contract”):other Acquired Corporation of an amount or value in excess of $250,000;
(iii) any contract each Contract that is executory in whole or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions part and brokerage agreements arising was not entered into in the ordinary course of business, intercompany indebtedness business and immaterial leases for telephones, copy machines, facsimile machines and that involves expenditures or receipts of the Company or any other office equipment) Acquired Corporation in excess of $500,000250,000;
(iii) each lease, rental or occupancy agreement, license agreement, installment and conditional sale agreement, and any other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property of any Acquired Corporation (except for those issued personal property leases and installment and conditional sales agreements having a value per item or annual payments of less than $175,000);
(iv) other than licensing agreements entered into in connection with product sales in the ordinary course of the Company's or the other Acquired Corporations' business;
(ii) , each material licensing agreement or any contract or agreement that constitutes a collective bargaining other material Contract with respect to patents, trademarks, copyrights or other arrangement Intellectual Property, including material Contracts with any labor union;
(iii) any contract current or agreement that is a “material contract” within former employees, consultants or contractors regarding the meaning appropriation or the non-disclosure of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000Intellectual Property;
(v) each collective bargaining agreement and any lease other Contract to or agreement under which the Company with any labor union or other employee representative of a group of employees of any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company SubsidiariesAcquired Corporation;
(vi) each joint venture, partnership and any contract other material Contract (however named) involving a sharing of profits, losses, costs or agreement limiting, liabilities by an Acquired Corporation with any other Person;
(vii) each Contract containing covenants that in any material respect, way purport to restrict the ability business activity of an Acquired Corporation or limit the Company or any freedom of the Company Subsidiaries an Acquired Corporation to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) each Contract providing for material payments to or by any contract Person based on sales, purchases or agreement that relates to Intellectual Property Rights (profits, other than a license granted to the Company direct payments for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)goods;
(ix) any contract or agreement each power of attorney that concerns the sale or acquisition of any material portion of the Company’s businessis currently effective and outstanding granted by and relating to an Acquired Corporation;
(x) any alliance, cooperation, joint venture, shareholders, partnership each Contract that contains or similar agreement involving a sharing of profits or losses relating provides for an express undertaking by an Acquired Corporation to the Company or any Company Subsidiarybe responsible for consequential damages;
(xi) any contract each Contract that is executory in whole or agreement involving annual payments in part and involves capital expenditures by an Acquired Corporation in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice250,000;
(xii) any material hedgeeach written warranty, collar, option, forward purchasing, swap, derivative or guaranty and/or other similar agreement, understanding or undertaking;
(xiii) any contract or agreement undertaking with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries contractual performance extended by an Acquired Corporation other than, with respect to non-executive employees and consultants, than in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xvxiii) each Contract with any material contract employee, director or agreement that would require any consent or approval officer of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractsan Acquired Corporation.
Appears in 2 contracts
Samples: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Contracts. (a) The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct Disclosure Schedule contains a true and complete copies list of each of the following written or oral contracts, agreements or other arrangements to which the Company or any Company Subsidiary is a party or by which any of its Assets and Properties is bound (eachand, a “Material Contract”to the extent oral, accurately describes the terms of such contracts, agreements and arrangements):
(i) any contract all collective bargaining or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesssimilar labor agreements;
(ii) all contracts for the employment of any contract or agreement that constitutes a collective bargaining officer, employee or other arrangement with any labor unionperson or entity on a full time, part time, consulting or other basis;
(iii) all loan agreements, indentures, debentures, notes or letters of credit relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any contract material asset or agreement that is a “material contract” within group of assets of the meaning of Item 601(b)(10) of Regulation S-KCompany;
(iv) all guarantees of any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000obligation;
(v) any lease all leases or agreement agreements under which the Company is lessee or any of the Company Subsidiaries is lessor of, or permits any Person to hold holds, or operateoperates, any property property, real or personal, owned or controlled by the Company or any of the Company Subsidiariesother party;
(vi) any contract all commitments, contracts, sales contracts, purchase orders, mortgage agreements or agreement limiting, in any material respect, groups of related agreements with the ability of the Company same party or any group or affiliated parties which require or may in the future require payment of any consideration by the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any PersonCompany;
(vii) all license agreements, distribution agreements or any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000other agreements involving any Company Intellectual Property;
(viii) all subscription or registration rights agreements or any contract or agreement that relates to Intellectual Property Rights (other than a license granted agreements related to the Company for commercially available software licensed on standard terms with a total replacement cost equity ownership of less than $500,000)the Company;
(ix) all contracts or commitments that in any contract or agreement that concerns way restrict the sale or acquisition of any material portion of Company from carrying on its business anywhere in the Company’s business;world; and
(x) any allianceall other contracts and agreements that (A) involve the payment or potential payment, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating pursuant to the Company or terms of any Company Subsidiary;
(xi) any such contract or agreement involving annual payments in excess of $500,000 that agreement, by the Company and (B) cannot be cancelled by terminated within thirty (30) days after giving notice of termination without resulting in any cost or penalty to the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;Company.
(xiib) any material hedgeEach contract, collar, option, forward purchasing, swap, derivative agreement or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, arrangement disclosed in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) Disclosure Schedule is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms terms, of each party thereto; and (C) will continue to be legal, valid, binding, enforceablethe Company has performed all of its required obligations under, and is not in full force and effect in all material respects following the consummation violation or breach of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Companyor default under, any such contract, agreement or arrangement. The other party thereto is parties to any such contract, agreement or arrangement are not in material violation or breach of or default under any Material Contractsuch contract, agreement or arrangement. No benefits under None of the present or former employees, officers, directors or shareholders of the Company is a party to any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of oral or written contract or agreement prohibiting any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of them from freely competing with other parties or engaging in the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts's as now operated.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Comps Com Inc), Stock Purchase Agreement (Comps Com Inc)
Contracts. The (a) Section 3.16 of the Company has Previously Disclosed or provided Disclosure Letter lists, as of the date of this Agreement, each Contract (by hard copy, electronic data room or otherwiseother than any Company Plan) to the Investor or its representatives true, correct and complete copies of each of the following types to which the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):or by which any of their respective properties or assets is bound:
(i) any contract or agreement relating Contract that would be required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured be filed by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is Company as a “material contract” within the meaning of pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;
(ivii) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
Contract that (vA) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, limits the ability of the Company or any of the Company its Subsidiaries to engage compete in any line of business or to compete, whether by restricting territories, customers or otherwise, with any Person or in any other material respectgeographic area, with or (B) restricts the right of the Company and its Subsidiaries to sell to or purchase from any Person or to hire any Person, in each case, in a manner that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iii) any Contract that grants the other party or any third Person “most favored nation” status or any type of special discount rights, in each case, that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership or other similar agreement or arrangement;
(v) any Contract relating to Indebtedness (other than such Contracts solely between or among the Company and its Subsidiaries) and having an outstanding principal amount in excess of $25,000,000;
(vi) 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 $25,000,000 or more (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practice) and under which the Company or its Subsidiaries have a continuing obligation or liability;
(vii) any settlementContract pursuant to which the Company or any of its Subsidiaries has continuing indemnification, conciliation guarantee, “earn-out” or similar agreementother contingent payment obligations (other than indemnification or guarantee obligations contained in commercial Contracts entered into by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice), the performance of which will involve payment after the Closing Date of consideration in each case, that could result in payments in excess of $500,00015,000,000;
(viii) any contract Contract not entered into in the ordinary course of business between the Company or agreement that relates to Intellectual Property Rights (any of its Subsidiaries, on the one hand, and any Affiliate thereof other than a license granted to any Subsidiary of the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Company;
(ix) any contract or agreement Government Contract that concerns is material to the sale or acquisition of any material portion of the Company’s business;Company and its Subsidiaries, taken as a whole; or
(x) any alliance, cooperation, joint venture, shareholders, partnership Contract with a Top Supplier or similar agreement involving a sharing of profits Top Customer that by its terms calls for aggregate payment or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled receipt by the Company or a Company Subsidiary without penalty on not and its Subsidiaries under such Contract of more than 90 days’ notice;
$15,000,000 over the remaining term of such Contract (xii) including for any material hedgecapital commitment, collar, option, forward purchasing, swap, derivative loan or similar agreement, understanding or undertaking;
(xiii) any expenditure). Each contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, type described in the ordinary course of business;
clauses (xivi) any contract or agreement containing any through (x) non-competition or exclusive dealing obligations or other obligation which purports is referred to limit or restrict in any respect the ability of the herein as a “Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; andMaterial Contract.”
(xvb) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. (i) Each Company Material Contract (A) is legal, valid and binding on the Company or its Subsidiaries, as applicable, and, to the knowledge of the Company, each other party thereto, and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue terms, except where the failure to be legal, valid, binding, enforceable, enforceable and in full force and effect effect, individually or in all material respects following the consummation aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company and to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity; (ii) the Company and each of its Subsidiaries, and, to the knowledge of the transactions contemplated Company, each other party thereto, has performed all obligations required to be performed by it under each Company Material Contract, except where any noncompliance, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company; and (iii) there is no default under any Company Material Contract by the Transaction Documents. Neither Company or any of its Subsidiaries or, to the Company nor knowledge of the Company, any other party thereto, and no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a default on the part of the Company Subsidiariesor any of its Subsidiaries or, nor to the Knowledge knowledge of the Company, any other party thereto is in material violation or default under any such Company Material Contract. No benefits under , nor has the Company or any Material Contract will be increased, and no vesting of its Subsidiaries received any notice of any benefits under such default, event or condition, except where any such default, event or condition, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated Adverse Effect on the basis Company; provided, however, that the foregoing is without limitation to the provisions of any subsection (c) of the transactions contemplated by the Transaction Documentsthis Section 3.16. The Company has made available to Parent true and complete copies of all Company Material Contracts, including all amendments thereto.
(c) Neither the Company Subsidiaries, and nor any of its Subsidiaries has received any unresolved written notices seeking (i) to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute excuse a material breach or default or permit termination, modificationthird party’s non-performance, or accelerationdelay a third party’s performance, under the existing Company Material ContractsContracts due to interruptions caused by COVID-19 (through invocation of force majeure or similar provisions, or otherwise) or (ii) to modify in any material respect any Company Material Contract due to COVID-19.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Xylem Inc.), Merger Agreement (Evoqua Water Technologies Corp.)
Contracts. The Company has Previously Disclosed or provided (by hard copySet forth in Sections 2.13, electronic data room or otherwise) to the Investor or its representatives true2.14, correct 2.15 and complete copies of each 2.16 of the Company Disclosure Letter are the following contracts to which the Company or any Company Subsidiary of its subsidiaries is a party or by which any of them is bound (eachcollectively, a together with all contracts referred to in Sections 2.16, 2.20(c), 2.25 and 2.28, the (“Company Material ContractContracts”):
) (i) contracts between any contract current officer, director or agreement relating to indebtedness for borrowed money, letters stockholder of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of Affiliate thereof on the Company Subsidiaries is lessee ofone hand, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which and the Company or any of subsidiary thereof on the Company Subsidiaries is lessor of, or permits other hand; (ii) contracts under which any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability employee of the Company or any of its subsidiaries is entitled to receive annual payments (including salary and bonuses) in excess of $100,000; (iii) contracts that restrict the Company Subsidiaries to engage or any of its subsidiaries from competing in any line of business or to compete, whether by restricting territories, customers or otherwise, or with any person in any geographical area; (iv) contracts entitling any person to change in control or other material respectseverance payments; (v) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes and other contracts relating to the borrowing of money, other than any such document or agreement between the Company and a subsidiary of the Company or among subsidiaries of the Company; (vi) contracts involving the sale or purchase of goods or service in excess of $500,000 in any year or $5,000,000 over the life of such Company Material Contract; joint venture, partnership and similar agreements; (viii) contracts with any Person;
(vii) any settlement, conciliation respect to capital expenditures or similar agreement, the performance of which will involve payment after the Closing Date of consideration commitments for such expenditures in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
; (ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual contracts providing for payments in excess of $500,000 that cannot be cancelled by from the United States Government or any prime contractor of the United States Government over the life of such Company Material Contract; and (x) all other agreements, contracts or instruments entered into outside of the ordinary course of business or which are material to the Company and its subsidiaries taken as a whole. The Company has delivered or made available to Purchaser true and correct copies of all such Company Material Contracts. All such Company Material Contracts are the legal, valid and binding obligations of the Company and/or its subsidiaries enforceable against the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgesuch subsidiary, collarand, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service knowledge of any current or former directorsthe Company, officersagainst the other parties to the Company Material Contracts, employees or consultants of in accordance with their respective terms, subject, in each case, to the Enforceability Exceptions. Neither the Company or any of the Company Subsidiaries other thanits subsidiaries nor, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge knowledge of the Company, any other party thereto thereto, is in material violation of or in material default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsin respect of, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiarieshas there occurred an event or condition, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse the passage of time or giving of notice (or both), would constitute a material breach or default under or permit terminationthe termination of, modification, or acceleration, under the any such Company Material ContractsContract.
Appears in 2 contracts
Samples: Acquisition Agreement (Parker Hannifin Corp), Acquisition Agreement (Parker Hannifin Corp)
Contracts. The (a) Section 3.13(a) of the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies Disclosure Letter sets forth a list of each of the following Contract, including all amendments, supplements, exhibits and side letters to any such Contract, to which the Company or any Company Subsidiary is a party (eachor by which any of its properties or assets are bound which, a “Material Contract”):as of the date of this Agreement:
(i) any contract is required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or agreement relating (10) of Regulation S-K promulgated under the Securities Act or required to indebtedness for borrowed moneybe disclosed under Item 404 of Regulation S-K under the Securities Act (provided, letters that the Company shall only be required to list in clause (i) of creditSection 3.13(a) those Contracts that have not been filed with the SEC on or after January 1, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business2015);
(ii) any contract or agreement that constitutes a collective bargaining involves aggregate payments by, or other arrangement with any labor union;
(iii) any contract consideration or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which expenditures from, the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments Subsidiary in excess of $500,000;
500,000 over the remaining term of such Contract, and is not cancelable within sixty (v60) any lease days without material payment by or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating penalty to the Company or any Company Subsidiary;
(xiiii) contains any contract non-compete or agreement involving annual payments in excess exclusivity provisions with respect to any line of $500,000 that cannot be cancelled by the Company business or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement geographic area with respect to the employment Company or service any Company Subsidiary, or upon consummation of the Transactions, Parent or its Subsidiaries, or which restricts in any material respect the conduct of any current or former directors, officers, employees or consultants line of business of the Company or any Company Subsidiary, or upon consummation of the Company Subsidiaries Transactions, Parent or its Subsidiaries;
(iv) establishes a partnership, joint venture or similar arrangement;
(v) relates to the borrowing of money or extension of credit, in each case having a principal amount of Indebtedness in excess of $1,000,000 other than, with respect to non-executive employees than accounts receivables and consultants, payables incurred or arising in the ordinary course of businessbusiness consistent with past practice;
(xivvi) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of requires the Company or any Company Subsidiary to solicit customers dispose of or acquire assets or properties with a fair market value in excess of $1,000,000, or involves any pending or contemplated merger, consolidation or similar business combination;
(vii) is a Company Investment Contract;
(viii) requires any delivery of notice or prior consent in connection with the Transactions, where, if such notice or consent were not made or obtained, would give rise to any right of termination, cancellation, acceleration or amendment of, or trigger any payments or the manner in whichcreation of a Lien or other encumbrance, or result in any violation of or breach of or constitute a default under such Contract in connection with the localities in which, all or any portion consummation of the business of Mergers and the Company other Transactions;
(ix) is with a Governmental Entity;
(x) relates to a Related Party Transaction; or
(xi) contains any obligation, contingent or otherwise, on the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability part of the Company or any of its Subsidiaries to indemnify any other Person.
(b) Each Contract of the type described above in Section 3.13(a), whether or not set forth in Section 3.13(a) of the Company Subsidiaries Disclosure Letter, is referred to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty herein as a result of “Company Material Contract.” Except as, individually or in the consummation of the transactions contemplated by this Agreement. Each aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract (A) is legal, valid and valid, binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms on the Company and (C) will continue each Company Subsidiary that is a party thereto and, to be legalthe knowledge of the Company, valid, binding, enforceableeach other party thereto, and is in full force and effect effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, individually or in the aggregate, would not have or reasonably be expected to have a Company Material Adverse Effect, the Company and each Company Subsidiary has performed all material respects following obligations required to be performed by it under each Company Material Contract and, to the consummation knowledge of the transactions contemplated Company, each other party thereto has performed all obligations required to be performed by the Transaction Documentsit under such Company Material Contract. Neither the Company nor any None of the Company Subsidiariesor any Company Subsidiary, nor nor, to the Knowledge knowledge of the Company, any other party thereto thereto, is in material breach or violation of, or default under under, any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time or both would constitute a material violation, breach or default under any Company Material Contract, except where in each case such breach, violation or permit terminationdefault, modificationindividually or in the aggregate, would not have or accelerationreasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received written or, to the knowledge of the Company, other notice of any violation or default under any Company Material Contract.
(c) The Company has delivered or made available to Parent or provided to Parent for review, prior to the execution of this Agreement, true and complete copies of all of the Company Material Contracts.
Appears in 2 contracts
Samples: Merger Agreement (Apollo Commercial Real Estate Finance, Inc.), Merger Agreement (Apollo Residential Mortgage, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) SECTION 2.19(a) OF THE DISCLOSURE SCHEDULE (with paragraph references corresponding to the Investor or its representatives true, correct those set forth below) contains a true and complete copies list of each 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 execution of this Agreement), to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):or by which any of their respective Assets and Properties is bound:
(iA) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term or otherwise relating to employment or independent contracting or the termination of employment or independent contracting, 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 contract written or agreement relating unwritten representations, commitments, promises, communications or courses of conduct (excluding Benefit Plans and any such Contracts referred to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements in clause (including guarantees in respect of any A)) involving an obligation of the foregoing, but Company or any Subsidiary to make payments in any event excluding trade payablesyear, securities transactions and brokerage agreements arising other than with respect to salary or incentive compensation payments in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess to any employee exceeding $50,000 or any group of employees exceeding $500,000, except for those issued 100,000 in the ordinary course of businessaggregate;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement all Contracts with any labor union;
(iii) Person containing any contract provision or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease covenant prohibiting or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, limiting the ability of the Company or any of the Company Subsidiaries Subsidiary to engage in any line business activity or compete with any Person or, except as provided in SECTION 4.11, prohibiting or limiting the ability of business any Person to compete with the Company or to competeany Subsidiary;
(iii) all partnership, whether by restricting territoriesjoint venture, customers shareholders' or otherwise, or in any other material respect, similar Contracts with any Person;
(viiiv) all Contracts relating to Indebtedness of the Company or any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration Subsidiary in excess of $500,00010,000 or to preferred stock issued by the Company or any Subsidiary;
(v) all material Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchisees;
(vi) all Contracts relating to (A) the future disposition or acquisition of any Assets and Properties, other than dispositions or acquisitions in the ordinary course of business consistent with past practice, and (B) any merger or other business combination;
(vii) all Contracts between or among the Company or any Subsidiary, on one part, and Love, any officer, director, Affiliate (other than the Company or any Subsidiary) or Associate of Love or any Associate of any such officer, director or Affiliate, on another part;
(viii) any contract all collective bargaining or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)similar labor Contracts;
(ix) any contract or agreement all Contracts that concerns the sale or acquisition of any material portion of the Company’s business;
(xA) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect contain restrictions on the ability of the Company or any Company Subsidiary to solicit customers declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties, to change the manner lines of business in which, which it participates or the localities engages or to engage in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, Business Combination or (yB) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of require the Company or any Subsidiary to maintain specified financial ratios or levels of the Company Subsidiaries to own, operate, sell, transfer, pledge net worth or otherwise dispose other indicia of any material assets or businessfinancial condition; and
(xvx) any material contract or agreement all other Contracts (other than Benefit Plans, leases listed in SECTION 2.16(a) OF THE DISCLOSURE SCHEDULE and insurance policies listed in SECTION 2.21 OF THE DISCLOSURE SCHEDULE) that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legalinvolve the payment or potential payment, valid and binding on pursuant to the terms of any such Contract, by or to the Company or any Subsidiary of more than $10,000 annually and the Company Subsidiaries which are a party to such contract, (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in any material cost or penalty to the Company or any Subsidiary.
(b) Each Contract required to be disclosed in SECTION 2.19(a) OF THE DISCLOSURE SCHEDULE is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms terms, of each party thereto; and (Cexcept as disclosed in SECTION 2.19(b) will continue to be legalOF THE DISCLOSURE SCHEDULE neither the Company, validany Subsidiary nor, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the CompanyLove, any other party thereto is to such Contract is, or has received notice that it is, in material violation or breach of or default under any Material Contract. No benefits under any Material such Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that (or with notice or lapse of time or both, would constitute a material be in violation or breach of or default under any such Contract) in any material respect.
(c) Except as disclosed in SECTION 2.19(c) OF THE DISCLOSURE SCHEDULE, neither the Company nor any Subsidiary is a party to or permit terminationbound by any Contract that has been or could reasonably be expected to be, modificationindividually or in the aggregate with any other such Contracts, materially adverse to the Business or acceleration, under Condition of the Material ContractsCompany.
Appears in 2 contracts
Samples: Option to Purchase (PDT Inc /De/), Investment Agreement (PDT Inc /De/)
Contracts. The (a) Section 4.11 of the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and Disclosure Schedule sets forth a complete copies list of each of the following agreements to which the Company or Company, any Company Subsidiary or any Nonprofit Organization is a party (each, a “Material Contract”):or by which any of them is bound:
(i) any contract or agreement relating that would be required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured be filed by the Company as a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any material contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of pursuant to Item 601(b)(10) of Regulation S-K;
(ii) contract containing covenants of the Company, any Company Subsidiary or Nonprofit Organization not to compete in any line of business, industry or geographical area or which affects the ability of an Affiliate of the Company, any Company Subsidiary or any Nonprofit Organization from competing in any line of business, industry or geographical area;
(iii) contract which does, or could reasonably be construed to, create a partnership or joint venture or similar arrangement with respect to any material business of the Company, any Company Subsidiary or Nonprofit Organization;
(iv) any lease contract that, individually or in the aggregate, could or could reasonably be expected to prevent, materially delay or materially impede the Company’s ability to consummate the transactions contemplated by this Agreement;
(v) indenture, credit agreement, loan agreement, guarantee, note or other evidence of Indebtedness or agreement under providing for Indebtedness in excess of the Material Amount;
(vi) contract (other than the ANM Merger Agreement, the Sedora Merger Agreement and this Agreement) for the acquisition or sale of assets (whether by merger, consolidation, acquisition of stock or assets or otherwise) in excess of the Material Amount;
(vii) collective bargaining agreement, employment agreement, offer letter, or severance or termination or transition agreement, in each case providing for annual payments of more than the Material Amount;
(viii) agreement (or group of related agreements) for the lease of personal property providing for annual payments of more than the Material Amount;
(ix) contract (other than purchase orders) for the purchase or sale of materials, supplies, goods, equipment, products, merchandise or other assets, or for the furnishing or receipt of services, with any of the top 20 vendors of the Company, the Company Subsidiaries and the Nonprofit Organizations, based on aggregate payments made by the Company, the Company Subsidiaries and the Nonprofit Organizations to such vendors, taken as a whole, during the fiscal year ending June 30, 2005;
(x) contract that contains a put, call, right of first refusal or similar right pursuant to which the Company, any Company Subsidiary or any Nonprofit Organization could be required to purchase or sell, as applicable, any Equity Interests of any Person or assets that have a fair market value or purchase price of more than the Material Amount;
(xi) settlement or conciliation agreement or similar agreement (except for benefit plans and individual employee agreements) or order or consent of a Governmental Authority to which the Company or any of the Company Subsidiaries or Nonprofit Organizations is lessee of, or holds or operates, any property owned a party involving future performance by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary or Nonprofit Organization which is material to solicit customers the Company;
(xii) other contract (other than the ANM Merger Agreement, the Sedora Merger Agreement, this Agreement or purchase orders in the manner in which, or the localities in which, all or any portion Ordinary Course of the business of the Company or the Company Subsidiaries is or can be conducted, or (yBusiness) right of first refusal or right of first offer or similar right or that limits or purports pursuant to limit the ability of which the Company or any Company Subsidiary or Nonprofit Organization has incurred a Liability in excess of the Material Amount or providing for payments from the Company Subsidiaries or any Company Subsidiary or Nonprofit Organization in excess of the Material Amount or the consequences of a default or termination of which could have a Material Adverse Effect;
(xiii) contract by which the Company, any Company Subsidiary or any Nonprofit Organization licenses to ownor from any Person any material Intellectual Property or that otherwise concerns material Intellectual Property or that otherwise concerns material Intellectual Property;
(xiv) agreement with any shareholder, operateformer shareholder, sellaffiliate, transferdirector or officer of the Company, pledge any Company Subsidiary or otherwise dispose any Nonprofit Organization, or any relative of any material assets or businessof the foregoing; and
(xv) any material Real Property Leases; and
(xvi) Tax sharing agreements or similar agreements with respect to Taxes.
(b) Each such contract or agreement that would require any consent or approval of a counterparty described in Section 4.11(a) is referred to herein as a “Material Contract.” With respect to each Material Contract: (i) neither the Company nor any Company Subsidiary or Nonprofit Organization is (and, to the knowledge of the Company, no other party is) in or is alleged to be in breach of or default under such Material Contract; (ii) neither the Company nor any Company Subsidiary or Nonprofit Organization has given or received any written notice or claim of default under such Material Contract; (iii) no event has occurred that, with or without notice or lapse of time or both, would result in a breach or a default under such Material Contract; (iv) such Material Contract is in full force and effect, and is the valid, binding and enforceable obligation of the Company, the Company Subsidiaries or the Nonprofit Organizations, as applicable, and to the knowledge of the Company, of the other parties thereto; (v) the consummation of the transactions contemplated by this Agreement. Each Agreement will not result in such Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party failing to such contract, (B) is continue in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following after the consummation of such transactions without penalty or other adverse consequence; (vi) no party has repudiated any provision of such Material Contract; and (vii) except as set forth in Section 4.11(b) to the Company Disclosure Schedule, such Material Contract does not contain any “change of control” or similar provision that would be triggered by, or contain an assignment prohibition or similar provision that would prohibit, the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documentsthis Agreement. The Company has made available to Acquiror true, correct and the Company Subsidiaries, and to the Knowledge complete copies of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a including all material breach or default or permit termination, modification, or acceleration, under the Material Contractsamendments thereto.
Appears in 2 contracts
Samples: Merger Agreement (Westland Development Co Inc), Merger Agreement (Westland Development Co Inc)
Contracts. The (i) Section 3.01(i) of the Company has Previously Disclosed or provided Letter sets forth, as of the date of this Agreement, (by hard copy, electronic data room or otherwisewith specific reference to the subsection of this Section 3.01(i) to the Investor or its representatives true, which such Contract relates) a complete and correct and complete copies of list of:
(A) each of the following Contract pursuant to which the Company or any of its Subsidiaries has agreed not to compete with any person in any area or to engage in any activity or business, or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of so competing or engaging;
(B) each Contract to or by which the Company Subsidiary or any of its Subsidiaries is a party (each, a “Material Contract”):
(i) or bound providing for exclusivity or any contract similar requirement or agreement relating pursuant to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien which the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but its Subsidiaries is restricted in any event excluding trade payablesway, securities transactions and brokerage agreements arising or which after the Effective Time could restrict Parent or any of its Subsidiaries in any way, with respect to the ordinary course development, manufacture, marketing or distribution of businesstheir respective products or services or otherwise with respect to the operation of their businesses, intercompany indebtedness and immaterial leases for telephonesor pursuant to which any benefit or right is required to be given or lost, copy machinesor any penalty or detriment is incurred, facsimile machines and as a result of non-compliance with any such exclusive or restrictive requirements or which requires the Company or any of its Subsidiaries to refrain from granting license or franchise rights to any other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessperson;
(iiC) each Contract to or by which the Company or any of its Subsidiaries is a party or bound or with respect to which the Company or any of its Subsidiaries has any obligation with (1) any contract affiliate of the Company or agreement that constitutes a collective bargaining any of its Subsidiaries (excluding Contracts entered into between the Company and any of its Subsidiaries), (2) any Company Personnel, (3) any union or other arrangement with labor organization or (4) any labor unionaffiliate of any such person (other than, in each case, (I) offer letters or employment agreements that are terminable at will by the Company or any of its Subsidiaries both without any penalty and without any obligation of the Company or any of its Subsidiaries to pay severance or other compensation or benefits (other than accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), (II) invention assignment and confidentiality agreements relating to the assignment of inventions to the Company or any of its Subsidiaries not involving the payment of money (other than compensation for the service of employees and non-employee directors) and (III) Benefit Plans and Benefit Agreements other than offer letters or employment agreements);
(iiiD) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement each Contract under which the Company or any of the Company its Subsidiaries is lessee of, or holds or operates, has incurred any property owned by any other Person with annual rent payments indebtedness having an aggregate principal amount in excess of $500,000;
(vE) any lease each Contract to or agreement under by which the Company or any of its Subsidiaries is a party or bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital leases or other title retention or security devices), other than (1) Liens for taxes not yet due and payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been established, (2) Liens for assessments and other governmental charges or landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business, consistent with past practice, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (3) Liens incurred in the ordinary course of business, consistent with past practice, in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations and (4) Liens incurred in the ordinary course of business consistent with past practice that are not reasonably likely to adversely interfere in a material way with the use of the properties or assets encumbered thereby (collectively, “Permitted Liens”);
(F) each Contract to or by which the Company or any of its Subsidiaries is lessor a party or bound (other than Benefit Plans and Benefit Agreements) containing any provisions (1) contemplating or relating in any way to a “change in control” or similar event with respect to the Company or one or more of its Subsidiaries, including provisions requiring consent or approval of, or permits any Person to hold or operatenotice to, any property owned Governmental Entity or controlled other person in the event of a change in control of the Company or one or more of its Subsidiaries, or otherwise having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement or the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancelation or material acceleration of any obligation, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person or (2) having the effect of providing that the consummation of the Merger or any of the other transactions contemplated by this Agreement 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 source code be released from escrow and provided to any third party;
(G) each Contract to or by which the Company or any of its Subsidiaries is a party or bound providing for payments of royalties or other license fees to third parties in excess of $50,000 annually that is not terminable without penalty on 90 days’ or less notice;
(H) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting a third party any license to Intellectual Property that is not limited to the internal use of such third party;
(I) each Contract pursuant to which the Company or any of its Subsidiaries has been granted any license to Intellectual Property, other than software licenses for generally commercially available off-the-shelf software (such as Symphony, Microsoft Word or Excel, WordPerfect or other word processing, spreadsheet, desktop operating system or e-mail software) readily substitutable in the operation of the business of the Company and its Subsidiaries;
(J) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting the other party to such Contract or a third party “most favored nation” pricing or terms that (1) applies to the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any of its Subsidiaries other than the Surviving Corporation or its Subsidiaries;
(K) each Contract pursuant to which the Company or any of its Subsidiaries has agreed or is required to provide any third party with access to source code, to provide for source code to be put in escrow or to grant a contingent license to source code;
(L) each Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company or any of its Subsidiaries in any material respect;
(M) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any joint venture (whether in partnership, limited liability company or other organizational form) or alliance or similar arrangement;
(N) each Contract to or by which the Company or any of its Subsidiaries is a party or bound for any development, marketing, resale, distribution or similar arrangement relating to any product or service;
(O) each Contract to or by which the Company or any of its Subsidiaries is a party or bound with any Governmental Entity;
(P) each material Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in the last five years in connection with the settlement or other resolution of any suit, claim, action, investigation or proceeding that has any material continuing obligations, liabilities or restrictions;
(Q) each Contract to or by which the Company or any of its Subsidiaries is a party or bound providing for future performance by the Company or any of the Company Subsidiariesits Subsidiaries in consideration of amounts previously paid;
(viR) any contract [RESERVED];
(S) each Contract (other than the Company’s standard form service level agreements) to or agreement limiting, in any material respect, the ability of by which the Company or any of the Company its Subsidiaries to engage in any line of business is a party or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights bound providing for liquidated damages (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000in an immaterial amount);
(ixT) any contract each material Contract to or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of which the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company its Subsidiaries is a party or can be conducted, or bound for professional services engagements for a fixed fee that guarantees a specific result; (yU) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of each Contract between the Company or any of the Company its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of and any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation 100 largest customers of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company its Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated determined on the basis of revenues received by the Company or any of its Subsidiaries in the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesfour consecutive fiscal quarter period ended March 31, 2015 (each such customer, a “Major Customer”, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material such Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.“Major Customer Contract”));
Appears in 2 contracts
Samples: Merger Agreement (Merge Healthcare Inc), Merger Agreement (Merge Healthcare Inc)
Contracts. The Company has Previously Disclosed or provided Except as otherwise disclosed in Schedules 3.13 (by hard copyReal Property), electronic data room or otherwise3.14(Intellectual Property), 3.20 (Insurance), 3.23 (Employment) to the Investor or its representatives true, correct and complete copies of each 3.27 (Customers and Suppliers) of the following Disclosure Letter, Schedule 3.17 of the Disclosure Letter lists each Contract to which the Company or any Company Subsidiary Acquired Entity is a party (each, a “Material Contract”):which:
(ia) is for the lease of personal property to or from any contract or agreement relating to indebtedness Person providing for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000£100,000 per annum;
(vb) any lease is for the purchase or agreement under which the Company or any sale of the Company Subsidiaries is lessor ofraw materials, commodities, supplies, products, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwiseother personal property, or in any other material respect, with any Person;
(vii) any settlement, conciliation for the furnishing or similar agreementreceipt of services, the performance of which will extend over a period of more than one year, that is known to result in a loss to Acquired Entity on completion of such Acquired Entities’ obligations, or involve payment after the Closing Date of consideration in excess of $500,000£100,000;
(viiic) any contract concerns an investment or agreement that relates to Intellectual Property Rights (other than interest in a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliancelimited liability company, cooperationpartnership, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiaryarrangement;
(xid) any contract Contract under which it has created, incurred, assumed, or agreement involving annual payments guaranteed any Liability for borrowed money or any capitalized lease in excess of $500,000 that cannot be cancelled by the Company £100,000, or a Company Subsidiary without penalty under which it has imposed or suffered to exist an Encumbrance on not more than 90 days’ noticeany of its assets;
(xiie) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingContract concerning non-competition;
(xiiif) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company Seller or any of their Affiliates (other than the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessAcquired Entities) is also a party;
(xivg) is a collective bargaining Contract;
(h) advances or loans or guarantees any loan in any amount to any of its directors or officers or any Seller or, outside the Ordinary Course of Business, to its employees that are not Sellers;
(i) any contract or agreement containing Contract for the employment of any (x) nonindividual on a full-competition or exclusive dealing obligations time, part-time, consulting, independent contractor or other obligation basis providing annual compensation in excess of £50,000 or providing severance benefits;
(j) the performance of which purports to limit or restrict involves consideration payable by any Acquired Entity in any respect the ability excess of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business£100,000; and
(xvk) any material contract or agreement that would require any consent or approval is outside the Ordinary Course of Business. Management Sellers have delivered to Buyer a counterparty correct and complete copy of each written Contract (as a result amended to date) required to be listed in Schedule 3.17 of the consummation Disclosure Letter and a written summary setting forth the terms and conditions of each oral Contract required to be referred to in Schedule 3.17 of the transactions contemplated by this AgreementDisclosure Letter. Each Material Contract With respect to each such Contract:
(A) the Contract is legal, valid and legally binding on the Company and the Company Subsidiaries which are a party parties to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and it in full force and effect in all material respects accordance with its respective terms;
(B) to the Management Sellers’ Knowledge, the Contract will continue in full force and effect on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor Transactions;
(C) to the Knowledge of the CompanyManagement Sellers’ Knowledge, any other no party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedbreach, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that which, with notice or lapse of time time, would constitute a material breach or default or permit termination, modification, or accelerationbreach, under the Material ContractsContract;
(D) no party to the Contract has repudiated, or advised the Acquired Entities or the Management Sellers in writing that it intends to repudiate, any provision of the Contract; and
(E) no party to the Contract has notified the Acquired Entities or any of the Management Sellers in writing that they intend to terminate the Contract or that they do not intend to renew the Contract when it comes to the end of its current term.
Appears in 2 contracts
Samples: Investment, Shareholders’ and Stock Purchase Agreement (Mens Wearhouse Inc), Investment, Shareholders’ and Stock Purchase Agreement (Mens Wearhouse Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct Asset Disclosure Schedule 4.14(a) contains a true and complete copies of each listing of the following contracts and other agreements with respect to which the Company ownership and operation of the Assets (each such contract or any Company Subsidiary is a party (each, agreement being referred to herein as a “Material Contract”):
(i) any contract Any natural gas gathering or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesstransportation agreement;
(ii) Any agreement (or group of related agreements with the same Person) for the lease of personal property to or from any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionPerson providing for lease payments in excess of $250,000 per annum;
(iii) any contract Any agreement (or agreement that group of related agreements with the same Person) for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which is a “material contract” within the meaning reasonably expected to involve annual consideration in excess of Item 601(b)(10) of Regulation S-K$250,000;
(iv) any lease or Any agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than concerning a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperationpartnership, joint venture, shareholders, partnership investment or similar agreement other arrangement (A) involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conductedAssets, or (yB) right requiring EQT Gathering to invest funds in or make loans to, or purchase any securities of, another Person, venture or other business enterprise relating to the Assets;
(v) Any agreement (or group of first refusal related agreements with the same Person) with respect to the creation, incurrence, assumption, or right guaranteeing of first offer any indebtedness for borrowed money, or similar right any capitalized lease obligation;
(vi) Any agreement that prohibits or that otherwise materially limits or purports to limit the ability of an owner of the Company Assets to compete in any material respect in any line of business or with any Person or in any material geographic area during any period of time after the Closing of the Asset Contribution;
(vii) Any agreement with EQT Gathering or any Affiliate (other than EQM and its Subsidiaries) to the extent applicable to the Assets and which individually involves annual revenues or payments in excess of $250,000;
(viii) Any collective bargaining agreement;
(ix) Any lease under which EQT Gathering is the lessor or lessee of real property that provides for an annual base rental to or from EQT Gathering of more than $250,000;
(x) Any easement agreement, right-of-way agreement, license or permit involving an annual payment of more than $250,000;
(xi) Any agreement that governs the use or development of Intellectual Property Assets (other than off-the-shelf software license agreements);
(xii) Any agreement under which the consequences of a default or termination would reasonably be expected to have a Gathering System Material Adverse Effect; or
(xiii) Any other agreement (or group of related agreements with the same Person) not enumerated in this Section 4.14, the performance of which by any party thereto involves consideration in excess of $250,000.
(b) EQT Gathering has made available to EQM and/or EQM Gathering Opco a correct and complete copy of each Material Contract.
(i) Each Material Contract, and each of the other Transferred Contracts, is legal, valid and binding on and enforceable against EQT Gathering, and to the Knowledge of EQT Gathering, against the other parties thereto, and is in full force and effect; (ii) EQT Gathering is not in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by EQT Gathering or permit termination, modification or acceleration under any Material Contract or under any of the Company Subsidiaries other Transferred Contracts; (iii) to ownthe Knowledge of EQT Gathering, operateno other party to any Transferred Contract is in breach or default, selland no event has occurred which with notice or lapse of time would constitute a breach or default by such other party, transferor permit termination, pledge modification or otherwise dispose acceleration under any Transferred Contract other than in accordance with its terms, nor has any other party repudiated any provision of any material assets or businessTransferred Contract; and
and (xviv) any material contract or agreement that would require any consent or approval of a counterparty except as a result of set forth on Asset Disclosure Schedule 4.14(c), following the consummation of the transactions contemplated by this Agreement. Each , each Material Contract (A) is legal, valid and binding on each of the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) other Transferred Contracts will continue to be legal, valid, binding, enforceable, valid and binding and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor on identical terms.
(d) EQT Gathering has not given to the Knowledge of the Company, or received from any other party thereto is in material Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible or potential violation or breach of, or default under any Material Contract. No benefits under under, any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required that continues to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractsunresolved.
Appears in 2 contracts
Samples: Contribution and Sale Agreement (EQT Midstream Partners, LP), Contribution and Sale Agreement
Contracts. The Company has Previously Disclosed or provided Disclosure Schedule lists all written and oral contracts and other written agreements, arrangements and understandings (by hard copy, electronic data room or otherwise“Contracts”) to the Investor or its representatives true, correct and complete copies of each which any of the following to which the Company or any Company Subsidiary and its Subsidiaries is a party (each, a “Material Contract”):or is bound:
(i) any contract or agreement relating to indebtedness for borrowed money, letters where the performance of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) which will involve consideration in excess of $500,000, except for those issued in the ordinary course of business100,000;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which restrict the Company or any of the Company its Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, from engaging in any material respect, line of business in any geographic area or competing with any person or entity or restricting the ability of the Company or any of the Company its Subsidiaries to engage in any line from acquiring equity securities of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(iii) which are employment, engagement, consulting or severance contracts applicable to any employee, officer, director, consultant, stockholder, distributor, dealer or sales representative of any of the Company or a Subsidiary;
(iv) which are acquisition, disposition, joint venture or similar agreements (each, an “Acquisition or Divestiture Agreement”);
(v) which is an evidence of any Indebtedness;
(vi) which is an intercompany agreement, including without limitation, any tax sharing, expense sharing, employee leasing or other similar agreement;
(vii) which is a contract with any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000Governmental Authority;
(viii) any contract or agreement that relates which is a lease pursuant to Intellectual Property Rights (other than a license granted to which the Company for commercially available software licensed on standard terms with a total replacement cost leases (as lessor or lessee) any personal property in excess of less than $500,000)100,000;
(ix) which is an agreement, arrangement or program pursuant to which the Company has offered or made available to its customers (including its distributors) any contract volume discount, rebate or agreement that concerns the sale advertising or acquisition of any material portion of the Company’s businesspromotional credit or allowance;
(x) any alliancewhich is an agreement with a customer which provides for a rebate, cooperation, joint venture, shareholders, partnership lowest price guarantee or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiaryvolume discount;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by which is a guaranty under which the Company is a guarantor or a Company Subsidiary without penalty on not more than 90 days’ noticeotherwise responsible for any liability or obligation (including Indebtedness) of any other Person;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingwhich is an outstanding power of attorney;
(xiii) any contract which is an other agreement or agreement with respect commitment which is material to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;its business or operations; or
(xiv) which is a management, administrative services or data processing Contract (the Contracts in clause (i)-(xiv), each a “KCI Contract” and collectively, the “KCI Contracts”). Except as set forth in the Company Disclosure Schedule, there are no continuing or contingent payment obligations under any contract Acquisition or agreement containing Divestiture Agreement, and there are no outstanding indemnity claims under any (x) non-competition Acquisition or exclusive dealing obligations or other obligation which purports Divestiture Agreement. The Company has made available to limit or restrict in any respect the ability Purchaser a correct and complete copy of each of the Company or any Company Subsidiary KCI Contracts. With respect to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract each KCI Contract: (A) the KCI Contract is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following effect, subject to the consummation laws of the transactions contemplated by the Transaction Documents. Neither the Company nor any general application relating to bankruptcy, insolvency and relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies; and (B) none of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contractits Subsidiaries is, and to the Knowledge of the Company, no other party is, in breach or default, and no event has occurred that which with notice or lapse of time would constitute a material breach or default default. Neither the Company nor any Subsidiary has received or permit termination, modification, given any written notice of an intention to cancel or acceleration, under the Material Contractsterminate any KCI Contract.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Actuant Corp), Stock Purchase Agreement (Actuant Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to Section 3.12 of the Investor or its representatives true, correct and complete copies of each Disclosure Schedule contains a list of the following contracts, agreements, leases and other legally binding instruments, whether written or oral to which the Company is, or any Company Subsidiary is after the consummation of the transactions contemplated by the Contribution Agreement and the related transfer agreements will be, a party or by which it is, or after the consummation of the transactions contemplated by the Contribution Agreement and the related transfer agreements will be, otherwise bound (eacheach such contract, a “Material Contract”):
(a) contracts with respect to Benefit Plans sponsored by the Company;
(b) collective bargaining agreements and any other contracts with any labor unions;
(c) agreements for the employment or engagement of any officer or employee (not including at-will employment or offer letters) that (i) provide annual cash or other compensation in excess of $50,000 per year, (ii) provide for Change of Control Payments, or (iii) restrict the ability of the Company to terminate the employment of any contract Person at any time for any lawful reason or agreement relating to indebtedness for borrowed moneyno reason without liability (including severance obligations);
(d) agreements or arrangements with any individual serving as an independent contractor who works for or supports the Business;
(e) loan or credit agreements, promissory notes, bonds, debentures, security agreements, pledge agreements, mortgages, indentures, factoring agreements, guarantees, letters of credit, performance bonds, completion bonds, surety agreements, or similar financing arrangements;
(f) leases, subleases or licenses, either as lessee, sublessee or licensee or as lessor, sublessor or licensor, of any personal property, including capital lease obligationsleases, obligations secured which agreements involve annual payments in excess of $200,000, cannot be cancelled by the Company without payment or penalty upon notice of 30 days or less, or have unexpired terms as of the Closing Date that exceed one year;
(g) agreements or series of related agreements with customers, suppliers and vendors of the Company for the purchase or sale of goods or services involving payments in excess of $100,000 in the aggregate, which cannot be cancelled by the Company without payment or penalty upon notice of 30 days or less, or have unexpired terms as of the Closing Date that exceed one year, in each case in effect as of the date hereof;
(h) agreements with respect to the acquisition or disposition of any business, assets or securities outside the Ordinary Course of Business, or any equity or debt investment in or any loan to any Person;
(i) limited liability company agreements, partnership agreements, joint venture agreements and all other similar contracts (however named) that involve a Lien sharing of profits, losses, costs or interest rate liabilities by the Company with any other Person;
(j) all agreements by which the Company, Seller or currency hedging Holdings licenses any Business Intellectual Property to any Person and all agreements for Licensed Intellectual Property, other than agreements for commercial “off-the-shelf” Software or Open Source Software;
(including guarantees k) agreements with Seller or any current or former officer, director, stockholder or Affiliate of the Company;
(l) agreements containing covenants of the Company not to compete in any line of business or with any person in any geographical area or covenants of any other Person not to compete with the Company in any line of business or in any geographical area;
(m) outstanding agreements of guaranty, surety or indemnification, direct or indirect, by the Company;
(n) any Tax Sharing Agreement; and
(o) each amendment, supplement and modification in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in . All of the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under Material Contracts to which the Company or any of the Company Subsidiaries is lessee ofis, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither Contribution Agreement and the Company nor any of the Company Subsidiariesrelated transfer agreements will be, nor to the Knowledge a party are in full force and effect and are legal, valid and binding obligations of the Company, any enforceable against it in accordance with their terms, and, to the Company’s Knowledge, each other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will thereto, except to the extent enforcement may be increased, and no vesting of any benefits under any Material Contract will be accelerated, affected by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction DocumentsEnforceability Exceptions. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed is in compliance in all material respects with the terms and requirements of such Material Contract and, to the Company’s Knowledge, each other Person that is party to such Material Contract is in compliance in all material obligations required to be performed by them under each respects with the terms and requirements of such Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or the lapse of time or the giving of notice or both would constitute a material breach or default or permit terminationthereunder. No party to any of the Material Contracts has exercised any termination rights with respect thereto. The Company has made available to Purchaser true, modification, or acceleration, under correct and complete copies of all of the Material Contracts, together with all amendments, modifications or supplements thereto.
Appears in 2 contracts
Samples: Stock Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.), Stock Purchase Agreement (Autoliv Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each As of the following to which date hereof, neither the Company or nor any Company Subsidiary of its Subsidiaries is a party (each, a “Material to or is bound by any Contract”)::
(ia) any contract or agreement relating that would be required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured be filed by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is Company as a “material contract” within the meaning of pursuant to Item 601(b)(10) of Regulation S-KK under the Securities Act;
(ivb) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in Contract that imposes any material respect, restriction on the right or ability of the Company or any of its Subsidiaries to compete with any other Person or in any geographic area, or any other provision that by its express terms materially restricts the conduct of any line of business or activities in connection with any product line by the Company Subsidiaries or any of its Affiliates (or that following the Closing will materially restrict the ability of Parent or any of its Affiliates to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, activities in connection with any product line or in any other material respect, geographic area or compete with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ixc) any contract Contract that (i) obligates the Company or agreement that concerns any of its Subsidiaries (or following the sale Closing, Parent or acquisition any of its Affiliates) to conduct its or their respective businesses with any other Person on a preferential or exclusive basis, (ii) contains “most favored nation” or similar covenants or preferential treatment in favor of any other Person or (iii) is a requirements or “take or pay” Contract or otherwise requires the Company to purchase a minimum amount of a particular product from a supplier, in each case, in a manner that is material portion to the Company and its Subsidiaries, taken as a whole;
(d) any Contract requiring or otherwise relating to any future capital expenditures by the Company or any of its Subsidiaries that are $1,000,000 in excess of the Company’s businesscapital expenditure budget that has been made available to Parent;
(xe) any alliance, cooperation, joint venture, shareholders, partnership Contract with or similar agreement involving to a sharing of profits labor union or losses relating to the Company or guild (including any Company Subsidiarycollective bargaining agreement);
(xif) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect Contract relating to the employment or service of any current or former directors, officers, employees or consultants Indebtedness for borrowed money of the Company or any of its Subsidiaries having an outstanding principal amount in excess of $1,000,000 that is not disclosed in the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessSEC Documents;
(xivg) any contract or agreement containing Contract that grants any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in whichoption, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or refusal, right of first offer or similar right or any other Lien with respect to any material assets, rights or properties of the Company or its Subsidiaries;
(h) any Contract that limits provides for the acquisition or purports disposition of any asset (other than acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) and with any outstanding obligations that are material to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or businessits Subsidiaries; and
(xvi) any material contract joint venture, partnership or limited liability company agreement that would require or other similar Contract relating to the formation, creation, operation, management, control, dissolution, wind-up, exit from or buyout of any consent joint venture, partnership or approval limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or solely among the Company’s wholly owned Subsidiaries; and
(j) any Contract to which a (i) Top Supplier or (ii) Top Customer is a party. Each of a counterparty the Contracts of the types described in this Section 3.15 is referred to as a result “Material Contract”. Except for this Agreement and any Contract filed as an exhibit to the Company SEC Documents in unredacted form, the Company has made available to Parent or its Representatives a true, correct and complete copy of each Material Contract (including all amendments, modifications thereof) and Section 3.15 of the consummation Company Disclosure Letter sets forth a correct and complete list of the transactions contemplated by this Agreementall Material Contracts. Each Material Contract (A) is legal, valid and binding on the Company and the Company each of its Subsidiaries which are a party to such contractthereto and, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge knowledge of the Company, any other party thereto thereto, except for such failures to be valid and binding or to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is in material violation or no default under any Material ContractContract by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, 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 party thereto or, to the knowledge of the Company, any other party thereto. No benefits under There are no material disputes pending or, to the knowledge of the Company, threatened with respect to any Material Contract will be increased, and no vesting neither the Company nor any of its Subsidiaries has received any written notice of the intention of any benefits under other party to a Material Contract to terminate for default, convenience or not renew any Material Contract will be acceleratedContract, by nor to the occurrence of any knowledge of the transactions contemplated by Company, is any such party threatening to do so. Except as would not, individually or in the Transaction Documentsaggregate, nor will the value of any of the benefits under any reasonably be expected to have a Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company SubsidiariesAdverse Effect, and to the Knowledge knowledge of the Company, each of the other parties theretorepresentations and warranties set forth in Section 3.9 and Section 3.10 is true and correct with respect to Seven Hills. Except as otherwise set forth in the organizational documents of Seven Hills, have performed neither the Company nor any of its Subsidiaries has entered into any agreement granting any Person the right to make a debt or equity investment in all material respects all material obligations required to be performed by them under each Material Contract, and to Seven Hills or acquire the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material ContractsSeven Hills Interest.
Appears in 2 contracts
Samples: Merger Agreement (Continental Building Products, Inc.), Merger Agreement (Continental Building Products, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each As of the following to which date of this Agreement, neither the Company or nor any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):to:
(i) any contract or agreement relating Contract that would be required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured be filed by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is Company as a “material contract” within the meaning of pursuant to Item 601(b)(10) of Regulation S-KK under the Securities Act;
(ivii) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
Contract that (vA) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, restricts the ability of the Company or any of its Subsidiaries (or, after the Closing, would restrict Parent, TopCo or any of their respective Subsidiaries) in any material respect to compete with any other person or acquire or dispose of the securities of another person and (B) is material to the Company and its Subsidiaries, taken as a whole;
(iii) any loan, mortgage, 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 $500.0 million, is outstanding or may be incurred, other than any such Contract solely between or among any of the Company and any of its Subsidiaries;
(iv) any Contract that is related to the governance or operation of any joint venture, partnership or similar arrangement, other than such Contract solely between or among any of the Company and any of its Subsidiaries;
(v) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to engage declare or pay dividends or make distributions in respect of their capital stock, partner interests, membership interests or other equity interests, as the case may be;
(vi) any Contract that by its terms calls for aggregate payments by the Company or any of its Subsidiaries of more than $500.0 million in any line fiscal year period or $1.0 billion in the aggregate over the term of business such Contract, except for any such Contract that may be canceled by the Company, without any material penalty or other liability to competethe Company or any of its Subsidiaries, whether by restricting territories, customers upon notice of 180 days or otherwise, or in any other material respect, with any Personless;
(vii) any settlementContract that involves, conciliation or similar agreementis reasonably expected in the future to involve, the performance of which will involve payment after the Closing Date of consideration in excess annual revenues of $500,000500.0 million in the aggregate;
(viii) any contract or agreement that relates to Intellectual Property Rights (material Contract, other than Contracts for transportation services to be provided for FERC-regulated Natural Gas Act or Interstate Commerce Act transportation services pursuant to an open season, that contains a license granted to “most favored nation” or any similar term for the benefit of a third party that restricts the business of the Company for commercially available software licensed on standard terms with (or would, after the Closing, restrict the business of Parent, TopCo or any of their respective Subsidiaries) in a total replacement cost of less than $500,000)material manner;
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s businesscollective bargaining agreement;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to Contract under which the Company or any Company Subsidiary;
(xi) of its Subsidiaries has advanced or loaned any contract or agreement involving annual payments in excess amount of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) money to any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any its current or former directors, officers, employees or consultants consultants, in each case with a principal amount in excess of $100,000;
(xi) any material Contract that includes any Affiliate of the Company or any (other than a Subsidiary of the Company Subsidiaries Company) as a counterparty or third party beneficiary;
(xii) any Contract to acquire all or a portion of the capital stock, business, property or assets of any other than, with respect to person for an amount of cash (or value of non-cash consideration) in excess of $500.0 million;
(xiii) any Contract in favor of directors or executive employees and consultants, in the ordinary course of business;officers relating to employment or compensation or providing rights to indemnification; or
(xiv) any contract Contract the loss or agreement containing any breach of which would reasonably be expected to have a Company Material Adverse Effect. Each such Contract described in clauses (xi) non-competition through (xiv) above is referred to herein as a “Company Specified Contract”. The Company has delivered or exclusive dealing obligations or other obligation which purports made available to limit or restrict in any respect the ability Parent true and complete copies of all Company Specified Contracts. Each of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries Specified Contracts is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and or the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any Subsidiary of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedand, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties party thereto, have performed and is in all material respects all material obligations required full force and effect, except for such failures to be performed valid and binding or to be in full force and effect that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There is no default under any Company Specified Contract by them under each Material Contractthe Company or any of its Subsidiaries or, and to the Knowledge of the Company, no event has occurred by any other party thereto, in each case except for such defaults that with notice have not had and would not reasonably be expected to have, individually or lapse of time would constitute in the aggregate, a material breach or default or permit termination, modification, or acceleration, under the Company Material ContractsAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)
Contracts. The (a) Except as filed as an exhibit to a Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) SEC Document prior to the Investor or its representatives truedate of this Agreement, correct and complete copies of except for the Company Benefit Plans, each of the following contracts, agreements or arrangements are set forth in Section 3.18(a) of the Company Disclosure Letter:
(i) any agreement relating to the borrowing of money or the extension of credit (other than agreements among direct or indirect wholly owned Company Subsidiaries, and other than any agreements that generate trade payables or other accounts payable in the ordinary course of business consistent with past practice);
(ii) any joint venture, partnership, limited liability company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iii) any agreement or series of related agreements, including any option agreement, entered into after January 1, 2010 or not yet consummated, relating to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which the Company or any Company Subsidiary is a party (eachor, a “Material Contract”):
(iafter the Effective Time, the Surviving Corporation or its Subsidiaries) any contract may engage or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien the manner or interest rate or currency hedging agreements (including guarantees locations in respect of which any of the foregoing, but them may so engage in any event excluding trade payables, securities transactions and brokerage agreements arising business in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or is currently engaged including any of the Company Subsidiaries is lessee ofcovenant not to compete, or holds or operates, any property owned by any other Person with annual rent payments in excess that could require the disposition of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company assets or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xiv) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled providing for the production by the Company or a any Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current product on an exclusive or former directors, officers, employees requirements basis or consultants of the purchase by the Company or any Company Subsidiary of the Company Subsidiaries other thanany product on an exclusive or output basis, with respect to non-executive employees and consultants, in each case not entered into in the ordinary course of businessbusiness consistent with past practice;
(xivvi) any contract “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), other than Company Benefit Plans;
(vii) any agreement or agreement containing any (x) non-competition series of related agreements entered into after January 1, 2010 or exclusive dealing obligations not yet consummated that involve expenditures or other obligation which purports to limit or restrict in any respect the ability receipts of the Company or any Company Subsidiary in excess of $50,000 individually or $100,000 in the aggregate for a series of related agreements per year, in each case, that are not entered into in the ordinary course of business consistent with past practice;
(viii) any agreement by which the Company or any Company Subsidiary licenses or otherwise obtains the right to solicit customers use material Intellectual Property rights or trade secrets of any other Person (other than licenses for readily available commercial software) or by which the manner Company or any Company Subsidiary is restricted in whichits right to use or register, or licenses or otherwise permits any other Person to use, enforce, or register any material Company Owned Intellectual Property or trade secrets; or
(ix) any agreement the localities termination or breach of which would reasonably be expected to result in whicha Material Adverse Effect on the Company.
(b) The agreements, all or any portion arrangements and plans that are required to be set forth in Section 3.18(a) of the business Company Disclosure Letter, or that would be required to be set forth but for the filing thereof as exhibits to the Company SEC Documents, are referred to herein as the “Company Contracts.” Except with respect to matters that, individually or in the aggregate, have not resulted in and would not reasonably be expected to result in a Material Adverse Effect on the Company, each Company Contract is a valid and binding agreement of the Company or a Company Subsidiary, as the Company Subsidiaries is or can be conductedcase may be, or (y) right of first refusal or right of first offer or similar right or that limits or purports subject to limit the ability of the Company or any of the Company Subsidiaries to ownbankruptcy, operateinsolvency, sell, fraudulent transfer, pledge reorganization, moratorium and similar Laws of general applicability relating to or otherwise dispose affecting creditors’ rights and to general equity principles (regardless of any material assets whether such enforceability is considered in a proceeding at equity or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legallaw), valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceableeffect, and in full force and effect in all material respects following the consummation none of the transactions contemplated by the Transaction Documents. Neither the Company, any Company nor any of the Company SubsidiariesSubsidiary or, nor to the Knowledge knowledge of the Company, any other party thereto is in default or breach in any material violation respect under the terms of any such Company Contract; and since January 1, 2010, neither the Company nor any Company Subsidiary, as the case may be, has waived any material right or default relinquished any material benefit under any Material such Company Contract. No benefits under any Material Contract will be increased, ; and no vesting event has occurred, which, after the giving of any benefits under any Material Contract will be acceleratednotice, with lapse of time, or otherwise, would constitute a material default by the occurrence of Company or any of the transactions contemplated by the Transaction DocumentsCompany Subsidiary or, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge knowledge of the Company, any other party under such Company Contract. True, correct and complete copies of each of the other parties thereto, such Company Contract (including all modifications and amendments thereto and waivers thereunder) have performed in all material respects all material obligations required been made available to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material ContractsParent.
Appears in 2 contracts
Samples: Merger Agreement (Superior Well Services, INC), Merger Agreement (Nabors Industries LTD)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to Section 5.12 of the Investor or its representatives true, correct Disclosure Schedule sets forth a complete and complete copies accurate list of each all of the following Contracts to which the any Transferred Company or any Company Subsidiary is a party (each, a “Material Contract”):or by which it is bound:
(ia) any contract or agreement relating to indebtedness Contracts for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect the sale of any of the foregoing, but assets of any Transferred Company other than in the ordinary course of business or for the grant to any event excluding trade payables, securities transactions and brokerage agreements arising Person of any preferential rights to purchase any of such assets other than in the ordinary course of business, intercompany indebtedness and immaterial leases in each case for telephonesconsideration in excess of $1,000,000;
(b) Contracts for joint ventures, copy machinespartnerships or sharing of profits or proprietary information;
(c) Contracts containing covenants not to compete in any line of business or with any Person in any geographical area;
(d) Contracts relating to the acquisition (by merger, facsimile machines and purchase of stock or assets or otherwise) of any operating business or material assets or the capital stock of any other office equipmentPerson for consideration in excess of $2,000,000, other than any such acquisitions in the ordinary course of business or reflected in the capital expenditure budget information provided to Parent;
(e) outstanding Contracts of Indebtedness or guaranty or surety of material Indebtedness or indemnification of any amount in excess of $500,000, except for those issued other than in the ordinary course of business;
(iif) any contract Contract under which any Transferred Company has advanced or agreement that constitutes a collective bargaining or other arrangement with loaned any labor unionamount to any of its directors, officers and employees;
(iiig) any contract material Contracts between any of the Transferred Companies, on the one hand, and ED&F or agreement that is a “material contract” within any Affiliate of ED&F, on the meaning of Item 601(b)(10) of Regulation S-Kother hand;
(ivh) collective bargaining Contracts;
(i) Contracts outside the ordinary course of business for the storage, treatment, disposal, investigation or remediation of Hazardous Substances;
(j) Contracts providing for indemnification of any lease officer or agreement under which director of a Transferred Company, other than any existing directors’ and officers’ insurance policy and as provided in organizational documents of any such company, as currently in effect; and
(k) other Contracts (other than those listed in clauses (a) through (j) of this Section 5.12 and other than the Company or any of Employment Contracts) (A) with a term longer than 180 days from the Company Subsidiaries is lessee of, or holds or operates, any property owned date hereof that involve payments by any other Person with annual rent payments Transferred Company in excess of $500,000;
1,000,000 per year; or (vB) with a term less than one (1) year from the date hereof that involve payments by any lease or agreement under which the Transferred Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii1,000,000, that are not terminable without premium or penalty on less than 30 days’ notice, in each case, such Contracts that are related primarily to a business included in the Business. Except as set forth in Section 5.12 of the Disclosure Schedule, and assuming due authorization, execution and delivery by the other parties thereto, each Contract listed in Section 5.12 of the Disclosure Schedule, each Employment Contract, each Lease listed in Section 5.9(a) any contract or agreement that relates of the Disclosure Schedule and each material Contract pertaining to Intellectual Property Rights (other than to which a license granted to the Transferred Company for commercially available software licensed on standard terms with is a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries party is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and is binding on the each Transferred Company party thereto and, to ED&F’s Knowledge, each other party thereto and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable effect. Except as set forth in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation Section 5.12 of the transactions contemplated by the Transaction Documents. Neither the Disclosure Schedule, no Transferred Company nor any of the Company Subsidiariesnor, nor to the Knowledge of the CompanyED&F’s Knowledge, any other party thereto is in default or breach in any material violation or default respect under the terms of, nor has any Material Contract. No benefits under Transferred Company received any Material Contract will be increased, and no vesting notice of any benefits under material default or breach under, any Material such Contract will be acceleratedor Lease, by the occurrence of any of the transactions contemplated by the Transaction Documentsand, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the CompanyED&F’s Knowledge, no event or circumstance has occurred that that, with the passage of time or the giving of notice or lapse of time both, would constitute a material breach default thereunder or default or would permit termination, material modification, or acceleration, under or termination of any such Contract or the Material Contractsloss of any material benefit thereunder. ED&F has delivered or made available to Parent copies of all of the written Contracts listed in Section 5.12 of the Disclosure Schedule and of all of the written Employment Contracts that are true, correct and complete in all material respects, together with all material amendments thereto.
Appears in 2 contracts
Samples: Transaction Agreement (Shermen WSC Acquisition Corp), Transaction Agreement (Shermen WSC Acquisition Corp)
Contracts. The Prior to the date hereof, the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) made available to the Investor or its representatives truePurchaser true and correct copies of, correct and SCHEDULE 4.01(P) sets forth a complete copies and accurate list of each all of the following to contracts or commitments which the Company or any Company Subsidiary of its subsidiaries is a party or is bound (eachcollectively, a “Material Contract”the "CONTRACTS"):
(i) any contract lease (whether as lessor or lessee) of any interest in any real property and any pending and binding agreement to purchase or sell any real property; (ii) any lease of any personal property with aggregate annual rental payments in excess of $175,000; (iii) any agreement to purchase or sell a capital asset or an interest in any business entity for a price in excess of $175,000 or a right of first refusal with respect thereto; (iv) any agreement relating to indebtedness for borrowed money, letters the borrowing or lending of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising money other than advances to employees to cover business expenses in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
; (v) any lease joint venture contract, partnership contract or agreement under which the Company similar contract evidencing an ownership interest or any a participation in or sharing of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
profits; (vi) any contract guaranty, contribution agreement or other agreement limiting, in that includes any material respect, indemnification or contribution obligation; (vii) any agreement (including any noncompetition agreement) limiting the ability of the Company or any of the Company Subsidiaries its subsidiaries to engage in any line of business or to compete, whether by in business with any person or restricting territories, customers the geographical area in which the Company or otherwise, or any of its subsidiaries may engage in any other material respect, with any Person;
business; (viiviii) any settlementemployment, conciliation consulting, management, severance or similar agreement, the performance of which will involve payment after the Closing Date of consideration indemnification contract or agreement with annual obligations in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
175,000; (ix) any contract material contracts which are terminable or agreement that concerns the sale or acquisition contracts with annual obligations in excess of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to $175,000 under which payments by the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments of its subsidiaries may be accelerated upon a change in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants control of the Company or any of its subsidiaries; and (x) any other agreement which involves the Company Subsidiaries payment of an aggregate annual amount in excess of $175,000 (other than, with respect to non-executive employees and consultants, than fee for service contracts entered into in the ordinary course of business;
(xivbusiness consistent with past practice) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports is material to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are its subsidiaries taken as a party to such contract, (B) is whole. Except as disclosed in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the CompanySCHEDULE 4.01(P)(XI), no event has occurred that would, with notice or lapse the passage of time would or compliance with any applicable notice requirements or both, constitute a default by the Company or any of its subsidiaries or, to the Company's knowledge, by any other party under any of the Contracts except where the default would not, individually or in the aggregate, reasonably be expected to have a material breach adverse effect on the Company. Except as disclosed in SCHEDULE 4.01(P)(XII), to the Company's knowledge, no party to any of the Contracts intends to cancel or default or permit terminationterminate any of such Contracts. All of the Contracts are valid and binding obligations of the parties thereto, modificationare in full force and effect, and are enforceable against the parties thereto in accordance with their terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors' rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or acceleration, under the Material Contractsother equitable remedies.
Appears in 2 contracts
Samples: Merger Agreement (Lamela Luis E), Merger Agreement (Ramsay Youth Services Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copya) For purposes of this Agreement, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following shall be deemed to constitute a “Material Contract”:
(i) any Company Contract that is required by the rules and regulations of the SEC to be filed as an exhibit to the Company SEC Documents;
(ii) any employment, management, severance, retention, transaction bonus, change in control, consulting, relocation, repatriation or expatriation Contract that is not terminable at will by the Company or one of its Subsidiaries, pursuant to which the Company or one of its Subsidiaries has continuing obligations of $200,000 or more per calendar year as of the date of this Agreement (other than those pursuant to which severance is required by Law);
(iii) any Company Contract in connection with which or pursuant to which the Company and the Company Subsidiaries are committed to spend, in the aggregate, more than $1,000,000 during the current fiscal year;
(iv) any Company Contract that generated more than $1,000,000 in revenues for the Company or any Company Subsidiary in the fiscal year ended December 31, 2014;
(v) any Company Contract relating to the acquisition, transfer, development or sharing of any material Intellectual Property rights (except for any Company Contract pursuant to which (A) any Intellectual Property rights are licensed to the Company or any Company Subsidiary under any third-party software license generally available to the public; or (B) any Intellectual Property rights are licensed by the Company to any Person on a non-exclusive basis);
(vi) any Contract (A) relating to a transaction involving the disposition or acquisition of (1) assets whose value, in each case, is in excess of $2,500,000 or (2) any tangible assets constituting a material business or business line by the Company or any Company Subsidiary after the date of this Agreement, in each case other than in the ordinary course of business; or (B) pursuant to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):will acquire any material ownership interest in any other Person or other business enterprise other than any Company Subsidiary;
(ivii) any contract mortgages, indentures, guarantees, loans or agreement credit agreements, security agreements or other Contracts relating to indebtedness for borrowed money, letters the borrowing of money or extension of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements in each case in excess of $5,000,000 other than (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions A) accounts receivables and brokerage agreements arising payables in the ordinary course of business, intercompany indebtedness ; (B) loans to any Company Subsidiary in the ordinary course of business; and immaterial leases for telephones, copy machines, facsimile machines and other office equipment(C) in excess extensions of $500,000, except for those issued credit to customers in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract Contract providing for the payment, increase or agreement that relates to Intellectual Property Rights (other than a license granted to vesting of any benefits or compensation in connection with the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Merger;
(ix) any contract or Contract that is a settlement agreement that concerns imposes material obligations on the sale Company or acquisition any Company Subsidiary after the date of any material portion of the Company’s businessthis Agreement;
(x) any alliance, cooperation, Contract that involves a material joint venture, shareholders, limited liability company or partnership or similar agreement involving a sharing of profits or losses relating to the Company or with any Company Subsidiarythird Person;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement Contract containing any (x) non-competition or exclusive dealing obligations covenant or other obligation which purports to limit or restrict in any respect provision (A) limiting the ability right of the Company or any Company Subsidiary to solicit customers engage in any material line of business or to compete with any Person in any line of business that is material to the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or Company; (yB) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of prohibiting the Company or any of Company Subsidiary from engaging in any business with any Person or levying a fine, charge or other payment for doing so; or (C) containing “most favored nation,” “exclusivity” or similar provisions, in each case other than any such Contracts that (1) may be cancelled without material liability to the Company or its Subsidiaries upon notice of ninety (90) days or less; or (2) are not material to ownthe Company and its Subsidiaries, operate, sell, transfer, pledge or otherwise dispose of any material assets or businesstaken as a whole; and
(xvxii) any material contract or agreement that would require Company Contract which provides for indemnification of any consent or approval of a counterparty as a result Company Employee.
(b) Part 3.10(a) of the consummation Disclosure Schedule lists all Material Contracts as of the transactions contemplated by this AgreementAgreement Date. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect effect, and is enforceable in accordance with its terms terms, subject to (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (Cii) will continue to be legalrules of Law governing specific performance, validinjunctive relief and other equitable remedies.
(c) To the Company’s Knowledge, binding, enforceable, and in full force and effect in all material respects following the consummation as of the transactions contemplated by the Transaction Documents. Neither Agreement Date, neither the Company nor any of the Company SubsidiariesSubsidiary party to, nor to the Knowledge of the Company, any other party thereto to, any Material Contract, is in material violation breach of, or material default under under, any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 2 contracts
Samples: Merger Agreement (Procera Networks, Inc.), Merger Agreement (Procera Networks, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Section 6.13 (a) of the Parent Disclosure Letter lists the following Contracts to which the Company Parent or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):that are in effect as of the date hereof:
(i) any contract each “material contract” (as such term is defined in Item 10.C and in Instructions As To Exhibits of Form 20-F) to which Parent or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessits Subsidiaries is a party to or bound;
(ii) each Contract not contemplated by this Agreement that materially limits the ability of Parent or any contract of its Subsidiaries to engage in its business or agreement that constitutes a collective bargaining or other arrangement with compete in any labor unionmanner;
(iii) each Contract that creates a partnership, joint venture or any contract strategic alliance with respect to Parent or agreement that is a “material contract” within any of its Subsidiaries, other than the meaning organizational documents of Item 601(b)(10) of Regulation S-KParent or its Subsidiaries;
(iv) each employment, consulting, services or similar Contract with any lease employee, consultant or agreement under which the Company independent contractor of Parent or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000its Subsidiaries;
(v) any lease each indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or agreement under which the Company other evidence of Indebtedness or any Contract providing for Indebtedness in excess of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries$1,000,000;
(vi) any contract each Contract that relates to the acquisition or agreement limitingdisposition, in directly or indirectly, of any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, (whether by restricting territoriesmerger, customers sale of stock, sale of assets or otherwise) or material asset, or in including any vessel, other material respect, with any Personthan this Agreement;
(vii) each Contract that relates to the acquisition or disposition, directly or indirectly (whether by merger, sale of stock, sale of assets (including any settlementParent Vessel) or otherwise), conciliation by Parent or similar agreement, the performance any of which will involve payment its Subsidiaries after the Closing Date date of this Agreement of assets or any material business for consideration with a fair market value in excess of $500,0001,000,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted Contract related to the Company for commercially available software licensed on standard terms with a total replacement cost acquisition or disposition, directly or indirectly (by merger, sale of less than $500,000stock, sale of assets or otherwise), by Parent or any of its Subsidiaries prior to the date of this Agreement that includes provisions that are in effect in respect of “earn-outs” or deferred or contingent consideration;
(ix) each ship-sales, memorandum of agreement, bareboat charter or other vessel acquisition Contract for Newbuildings and secondhand vessels contracted for by Parent or any contract or agreement that concerns of its Subsidiaries and other Contracts with respect to Newbuildings and the sale or acquisition of any financing thereof, including performance guarantees, counter guarantees, refund guarantees, material portion of the Company’s businesssupervision agreements and material plan verification services agreements;
(x) any allianceeach operating agreement, cooperationmanagement agreement, joint venturecrewing agreement, shareholders, partnership Contract of affreightment or financial lease (including sale/leaseback or similar agreement involving a sharing of profits or losses relating arrangements) with respect to the Company or any Company SubsidiaryParent Vessel;
(xi) any contract Contract with a Third Party for the charter of any Parent Vessel, other than any (A) voyage charter or agreement involving annual payments in excess (B) time charter with a duration of $500,000 that cannot be cancelled by the Company 12 months or a Company Subsidiary without penalty on not more than 90 days’ noticeless;
(xii) each collective bargaining agreement or other Contract with a labor union to which Parent or any material hedge, collar, option, forward purchasing, swap, derivative of its Subsidiaries is a party or similar agreement, understanding or undertakingotherwise bound;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company each Contract that provides for indemnification by Parent or any of the Company its Subsidiaries to any Person other than, with respect to non-executive employees and consultants, than a Contract entered into in the ordinary course of businessbusiness or that is not material to any of Parent or its Subsidiaries;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation each Contract to which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company Parent or any of the Company its Subsidiaries to own, operate, sell, transfer, pledge is a party or otherwise dispose of bound that contains a so-called “most favored nations” provision or similar provisions requiring Parent or its Affiliates to offer to a Person any material assets terms or businessconditions that are at least as favorable as those offered to one or more other Persons; and
(xv) each Contract involving a standstill or similar obligation of Parent or any material contract or agreement that would require any consent or approval of a counterparty as a result its Subsidiaries.
(b) Parent has heretofore made available to the Oceanbulk Companies true and complete copies of the consummation Parent Material Contracts as in effect as of the transactions contemplated by this Agreementdate hereof. Each Except for breaches, violations or defaults which would have a Parent Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contractAdverse Effect, (Bi) each of the Parent Material Contracts is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, enforceable and in full force and effect in all material respects following with respect to Parent and its Subsidiaries and, to the consummation Knowledge of Parent, the transactions contemplated other parties thereto, except to the extent that the enforceability thereof may be limited by the Transaction Documents. Neither Equitable Exceptions and except for any Parent Material Contracts that have expired or been terminated after the Company nor any date hereof in accordance with its terms, and none of the Company Parent, its Subsidiaries, nor to the Knowledge of the Company, Parent any other party thereto is in material violation to a Parent Material Contract has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a breach or default under under, or give rise to any Material Contract. No benefits under any Material Contract will be increasedright of cancellation or termination of or consent under, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each such Parent Material Contract, and to the Knowledge (ii) none of the CompanyParent or its Subsidiaries has received written notice that it has breached, no event has occurred that with notice violated or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, defaulted under the any Parent Material ContractsContract.
Appears in 2 contracts
Samples: Merger Agreement (Oaktree Capital Management Lp), Merger Agreement (Star Bulk Carriers Corp.)
Contracts. The Company (a) TSG has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of SJET with the following contracts, agreements, leases, licenses, arrangements, commitments, sales orders, purchase orders or any claim or right or any benefit or obligation arising there under or resulting there from and currently in effect, whether oral or written, to which the Company or any Company Subsidiary TSG is a party (each, a “Material Contract”"Contracts"):
(i) any contract Contract (or agreement relating group of related Contracts) for the lease of personal property to or from any person providing for lease payments in excess of $10,000 per annum;
(ii) any Contract (or group of related Contracts) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, result in a loss to TSG, or involve consideration in excess of $10,000;
(iii) any Contract concerning a partnership or joint venture;
(iv) any Contract (or group of related Contracts) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, letters of credit, capital or any capitalized lease obligations, obligations secured by obligation or under which it has imposed a Lien or interest rate or currency hedging agreements (including guarantees in respect of lien on any of its assets, tangible or intangible;
(v) any Contract concerning confidentiality or noncompetition;
(vi) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other plan or arrangement for the foregoingbenefit of its current or former directors, but in officers, and employees;
(vii) any event excluding trade payablesContract under which its has advanced or loaned any amount to any of its directors, securities transactions officers, and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in employees outside the ordinary course of business;
(iiviii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement Contract under which the Company or any consent of the Company Subsidiaries other party thereto is lessee of, or holds or operates, any property owned by any other Person required in connection with annual rent payments the assignment of such Contract in excess of $500,000;
(v) any lease or agreement under which connection with the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)transaction contemplated hereby;
(ix) any contract Contract under which the consequences of a default or agreement that concerns the sale or acquisition of any termination could have a material portion of the Company’s business;adverse effect on TSG; or
(x) any alliance, cooperation, joint venture, shareholders, partnership other Contract (or similar agreement involving a sharing group of profits or losses relating to related Contracts) the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments performance of which involves consideration in excess of $500,000 that cannot be cancelled 10,000.
(b) All Contracts have been duly authorized and delivered by TSG and, any third party thereto, are in full force and effect against TSG and constitute the valid and binding obligations of TSG and, the respective parties thereto enforceable in accordance with their respective terms. As to the Contracts, (i) there are no existing breaches or defaults by TSG there under or, by the Company other parties to such Contracts; (ii) no event, act or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgeomission has occurred or, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract hereby, will occur which (A) is legalwith or without notice, valid and binding on lapse of time or the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation happening or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any other event) would result in a default by TSG there under or give cause for termination thereof, provided that insofar as the foregoing representation involves the actions or omissions of parties other than TSG, it shall be limited to the Best Knowledge of TSG; (iii) none of them will result in any loss TSG upon completion or performance thereof; and (iv) none of the transactions contemplated by parties to the Transaction DocumentsContracts have expressed and indication to TSG of their intention to cancel, nor will the value of renegotiate, or exercise or not exercise any of the benefits option under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material such Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Sonic Jet Performance Inc), Stock Purchase Agreement (Sonic Jet Performance Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisei) to the Investor or its representatives true, correct and complete copies of each Section 3.01(j) of the following Company Disclosure Schedule sets forth each contract, commitment, agreement, lease, instrument, arrangement, understanding, obligation or undertaking to which the Company or any Company Subsidiary of its subsidiaries is a party (eachor by or to which any of their properties are bound or subject that is material to the business of the Company and its subsidiaries, taken as a “Material Contract”):whole, including any such contract, commitment, agreement, lease, instrument, arrangement, understanding, obligation or undertaking:
(iA) any contract pursuant to which the Company or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingits subsidiaries has agreed not to compete with any person, but or to actively engage, in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course line of business;
(iiB) pursuant to which the Company or any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionof its subsidiaries has entered into an exclusive distributorship arrangement;
(iiiC) with (1) any contract beneficial owner of more than one percent of the outstanding Company Common Stock or agreement that is a “material contract” within more than one percent of the meaning capital stock of Item 601(b)(10any of the Company's subsidiaries, (2) any affiliate of Regulation S-Kthe Company or any of its subsidiaries or (3) any current or former director, officer, employee or consultant of the Company or any of its subsidiaries or of any affiliate of the Company or any of its subsidiaries (other than pursuant to Benefit Agreements or Benefit Plans);
(ivD) any lease or agreement that grants exclusive license rights to material Intellectual Property of the Company;
(E) under which the Company or any of the Company Subsidiaries its subsidiaries has (1) incurred any indebtedness for borrowed money that is lessee ofcurrently owing or (2) given any guarantee in respect of indebtedness for repayment of borrowed money, or holds or operates, any property owned by any other Person with annual rent payments in each case having an aggregate principal amount in excess of $500,000100,000;
(vF) that contains any lease guarantees as to the Company's or agreement under any of its subsidiaries future revenues or operating income;
(G) that is otherwise material and that requires any consent (including any consent to assignment) of or notice to a third party, or any approval, authorization, qualification or order of any Governmental Entity, in connection with this Agreement or the consummation of the transactions contemplated hereby in order to avoid termination of or loss of benefits thereunder;
(H) providing for payments of royalties to third parties at a current rate in excess of $100,000 per year;
(I) not made in the ordinary course of business granting a third party any license to any material Intellectual Property rights of the Company or any of its subsidiaries, other than "shrink-wrap" licenses or licenses granted in connection with the sale of products;
(J) providing confidential treatment by the Company or any of its subsidiaries of third party information, other than (1) nondisclosure agreements entered into by the Company or any of its subsidiaries in the ordinary course of business or (2) the Confidentiality Agreement;
(K) granting the other party thereto or a third party "most favored nation" status that, following consummation of the Merger, would in any way apply to Parent or any of its subsidiaries (other than the Company and its subsidiaries and their products);
(L) pursuant to which the Company or any of the Company Subsidiaries is lessor of, its subsidiaries receives or permits has a continuing obligation to purchase any Person to hold information technology services or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any information technology products that are material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion conduct of the business of the Company or the Company Subsidiaries is or can be conductedand its subsidiaries, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty taken as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractswhole.
Appears in 2 contracts
Samples: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Chemfirst Inc)
Contracts. The Except as disclosed in the applicable subsection of Section 3.16 of the Company has Previously Disclosed or provided Disclosure Schedule (by hard copy, electronic data room or otherwisewhich is arranged in subsections numbered (i) to (xiv) to correspond to the Investor or its representatives true, correct and complete copies subsections of each this Section 3.16 of the following to which Company Disclosure Schedule), the Company is not bound by or any Company Subsidiary is a party (each, a “Material Contract”):to:
(i) any contract Contractual Obligation (or agreement relating group of related Contractual Obligations) for the purchase, sale, construction, repair or maintenance of inventory, raw materials, commodities, supplies, goods, products, equipment or other property, or for the furnishing or receipt of services, in each case, the performance of which will extend over a period of more than one year or which provides for (or would be reasonably expected to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured involve) annual payments to or by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) Company in excess of $500,000, except for those issued 100,000 or aggregate payments to or by the Company in the ordinary course excess of business$200,000;
(ii) any contract Contractual Obligation relating to the acquisition or agreement that constitutes a collective bargaining disposition by the Company of (A) any business (whether by merger, consolidation or other arrangement with business combination, sale of securities, sale of assets or otherwise) or (B) any labor unionmaterial Asset (other than in the Ordinary Course of Business);
(iii) any contract Contractual Obligation concerning or agreement that is consisting of a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kpartnership, limited liability company, joint venture or similar agreement;
(iv) any lease or agreement Contractual Obligation under which the Company or has permitted any of the Company Subsidiaries is lessee of, or holds or operates, any property owned Asset to become Encumbered (other than by any other Person with annual rent payments in excess of $500,000a Permitted Encumbrance);
(v) any lease or agreement Contractual Obligation (A) under which the Company has created, incurred, assumed or guaranteed any Debt or (B) under which any other Person has guaranteed any Debt of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company SubsidiariesCompany;
(vi) any contract or agreement limiting, Contractual Obligation containing covenants that in any material respectway purport to (A) restrict any business activity (including the solicitation, hiring or engagement of any Person or the ability solicitation of any customer) by the Company or (B) limit the freedom of the Company or any of the Company Subsidiaries Affiliate thereof to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
(vii) any settlementContractual Obligation under which the Company is, conciliation or similar agreementmay become, obligated to incur any severance pay or Compensation obligations that would become payable by reason of this Agreement or the performance of which will involve payment after the Closing Date of consideration in excess of $500,000Contemplated Transactions;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to Contractual Obligation under which the Company for commercially available software licensed on standard terms is, or may, have any Liability to any investment bank, broker, financial advisor, finder or other similar Person (including an obligation to pay any legal, accounting, brokerage, finder’s, or similar fees or expenses) in connection with a total replacement cost of less than $500,000)this Agreement or the Contemplated Transactions;
(ix) any contract Contractual Obligation providing for the employment or agreement that concerns the sale or acquisition consultancy of any material portion Person on a full-time, part-time, consulting or other basis or otherwise providing Compensation or other benefits to any officer, director, employee or consultant (other than a Company Plan and other than any consultancy involving Compensation of the Company’s businessless than $50,000 per year);
(x) any alliancematerial agency, cooperationdealer, joint venturedistributor, shareholderssales representative, partnership marketing or other similar agreement involving a sharing of profits or losses relating to the Company or any Company SubsidiaryContractual Obligation;
(xi) any contract outstanding general or agreement involving annual payments in excess special powers of $500,000 that cannot be cancelled attorney executed by or on behalf of the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeCompany;
(xii) any Contractual Obligation, other than Real Property Leases, relating to the lease or license of any material hedgeAsset, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingincluding Company Products and material Intellectual Property Rights (and including all material customer license and maintenance agreements) that is not included on Section 3.11(d) of the Company Disclosure Schedule;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of Contractual Obligation under which the Company has advanced or loaned an amount to any of the Company Subsidiaries its Affiliates or employees other than, with respect to non-executive employees and consultants, than in the ordinary course Ordinary Course of business;Business; and
(xiv) any contract other Contractual Obligation between the Company, on the one hand, and any Seller (or agreement containing any (x) non-competition Affiliate or exclusive dealing obligations or Family Member thereof), on the other obligation which purports hand, that will continue in effect after the Closing. The Company has delivered to limit or restrict in any respect the ability Buyer accurate and complete copies of each written Contractual Obligation listed on Section 3.16 of the Company Disclosure Schedule, in each case, as amended or any otherwise modified and in effect. The Company Subsidiary has delivered to solicit customers or the manner in which, or the localities in which, Buyer written summary setting forth all or any portion of the business material terms and conditions of each oral Contractual Obligation listed on Section 3.16 of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material ContractsDisclosure Schedule.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Mercury Computer Systems Inc)
Contracts. The (a) Neither the Company nor any of its Subsidiaries is a party to, and 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 Company SEC Documents.
(b) Except for Contracts filed in unredacted form as exhibits to the Company SEC Documents, and except for Contracts between the Company and its Subsidiaries or among Subsidiaries, Section 3.10(b) of the Company Disclosure Letter sets forth a correct and complete list as of the date of this Agreement, and the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) made available to the Investor or its representatives true, Parent correct and complete copies (including all amendments, modifications, extensions, renewals, guaranties or other Contracts with respect thereto, but excluding all names, terms and conditions that have been redacted in compliance with applicable Laws governing the sharing of each information), of:
(i) all Contracts of the following Company or any of its Subsidiaries having an aggregate value per Contract, or involving payments by or to the Company or any of its Subsidiaries, of more than $1,000,000 on an annual basis;
(ii) all Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party (eachparty, a “Material Contract”):
(i) any contract or agreement relating to indebtedness for borrowed moneyby which the Company, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company its Subsidiaries or any of the Company Subsidiaries its Affiliates is lessee ofbound, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, that contain a covenant materially restricting the ability of the Company or any of its Subsidiaries (or which, following the Company Subsidiaries consummation of the Merger, would materially restrict the ability of Parent or any of its Subsidiaries, including the Surviving Entity and its Subsidiaries) to engage compete in any line of business or to compete, whether by restricting territories, customers or otherwise, with any person or in any other geographic area;
(iii) all material respect, Contracts of the Company or any of its Subsidiaries with any PersonAffiliate of the Company (other than any of its Subsidiaries);
(iv) any (A) Contract to which the Company or any of its Subsidiaries is a party granting any license to Intellectual Property of the Company or any of its Subsidiaries that involves payments by the Company or any of its Subsidiaries with respect to such license of more than $500,000 on an annual basis, and (B) other license (other than real estate) having an aggregate value per license, or involving payments by the Company or any of its Subsidiaries, of more than $500,000 on an annual basis;
(v) all confidentiality agreements (other than those entered into in the ordinary course of business), agreements by the Company not to acquire assets or securities of a third party or agreements by a third party not to acquire assets or securities of the Company;
(vi) any Contract having an aggregate value per Contract, or involving payments by or to the Company or any of its Subsidiaries, of more than $500,000 on an annual basis that requires consent of or notice to a third party in the event of or with respect to the Merger, including in order to avoid a breach or termination of or loss of benefit under any such Contract;
(vii) all material joint venture, partnership or other similar agreements involving co-investment with a third party to which the Company or any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000its Subsidiaries is a party;
(viii) any contract Contract with a Governmental Authority which imposes any material obligation or agreement that relates to Intellectual Property Rights (other than a license granted to restriction on the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)or its Subsidiaries;
(ix) all leases, subleases, licenses or other Contracts pursuant to which the Company or any contract of its Subsidiaries use or agreement that concerns the sale or acquisition of hold any material portion property involving payments by or to the Company or any of the Company’s businessits Subsidiaries of more than $500,000 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 alliance, cooperation, joint venture, shareholders, partnership of its Subsidiaries involving payments by or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of its Subsidiaries of more than $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticean 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 (i) is not material hedge, collar, option, forward purchasing, swap, derivative to the Company or similar agreement, understanding or undertaking;any of its Subsidiaries and (ii) was entered into in the ordinary course of business; and
(xiii) all Contracts pursuant to which any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred and all guarantees of or by the Company or any of its Subsidiaries of any indebtedness of any other than, with respect to non-executive employees person (other than the Company or any of its Subsidiaries) (except for such indebtedness or guarantees the aggregate principal amount of which does not exceed $1,000,000 on an annual basis and consultants, excluding trade payables arising in the ordinary course of business;).
(xivi) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability None of the Company or any of the Company its Subsidiaries (x) is, or has received written notice or has Knowledge that any other party to ownany of its Contracts is, operatein violation or breach of or default (with or without notice or lapse of time or both) under, sellor (y) has waived or failed to enforce any rights or benefits under, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) to which it is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contractor any of its properties or other assets is subject, (B) is in full force and effect and enforceable in accordance with its terms and (Cii) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, there has occurred no event has occurred that giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Contract except for violations, breaches, defaults, waivers or failures to enforce rights or benefits covered by clauses (i) or (ii) above that individually or in the aggregate have not had and would constitute not reasonably be expected to have a material breach or default or permit termination, modification, or acceleration, under the Company Material ContractsAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Guilford Pharmaceuticals Inc), Merger Agreement (Mgi Pharma Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Except for the Investor or its representatives true, correct and complete copies of each Benefit Plans listed on Section 4.12(b) of the following to which Company Schedule of Exceptions, and as set forth in Section 4.15(a) of the Company or Schedule of Exceptions, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to or bound by, as of the date hereof, any contract (each, a “Material Contract”):
whether written or oral) (i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of (as such term is defined in Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any K of the Company Subsidiaries is lessee ofSEC), (ii) that purports to limit, curtail or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, restrict the ability of the Company or any of the Company its existing Subsidiaries to engage compete in any geographic area or line of business or restrict the Persons to competewhom the Company or any of its Subsidiaries may sell products or deliver services, whether (iii) that is a partnership or joint venture agreement for the acquisition, sale or lease of material properties or assets, including equipment (by restricting territoriesmerger, customers purchase or sale of stock or assets or otherwise, or in any other material respect), with any Person;
(vii) any settlementa value at the time of such acquisition, conciliation sale or similar agreement, the performance of which will involve payment after the Closing Date of consideration lease in excess of $500,000;
1,000,000 and entered into since January 1, 2010, (viiiv) with any contract Governmental Entity that is not a customer, client or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company supply franchise or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgedirector, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants Executive Officer of the Company or any of its Subsidiaries or any Affiliate of the Company Subsidiaries Company, (vi) that is a loan or credit agreement, mortgage, indenture, note or other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of instrument evidencing indebtedness for borrowed money by the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all of its Subsidiaries or any portion of the business of contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or the Company any of its Subsidiaries having an outstanding principal amount in excess of $100,000 individually, (vii) that is a financial derivatives master agreement or can be conductedconfirmation, or (y) right of first refusal or right of first offer futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar right trading activities, (viii) that is a voting agreement or registration rights agreement, (ix) that limits is a mortgage, pledge, security agreement, deed of trust or purports to limit the ability other contract granting a Lien on any material property or assets of the Company or any of its Subsidiaries, (x) that is a contract (other than customer, client, employment, consulting or supply contract) that involves cash consideration of greater than $100,000, (xi) that is a collective bargaining agreement, (xii) that is a “standstill” or similar agreement, (xiii) that is a contract that restricts or otherwise limits the payment of dividends or other distributions on equity securities, (xiv) to the extent material to the business or financial condition of the Company Subsidiaries to ownand its Subsidiaries, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty taken as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract whole, that is a (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such lease or rental contract, (B) project design or development contract, (C) consulting contract, (D) indemnification contract, (E) license or royalty contract, (F) merchandising, sales representative or distribution contract or (G) contract granting a right of first refusal, offer or first negotiation, or (xv) that is a commitment or agreement to enter into any of the foregoing (the contracts and other documents described in clauses (i) through (xv) of this Section 4.15(a) and to which the Company and any of its Subsidiaries is a party to or bound by, all contracts set forth in Section 4.15(a) of the Company Schedule of Exceptions and all contracts which have been filed with the SEC prior to the date hereof and are still in effect as of the date hereof, being referred to herein as “Material Contracts”).
(b) (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 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 that would reasonably be expected to have a Company Material Adverse Effect. All Material Contracts to which the Company or any of its Subsidiaries is a party, or by which any of their respective assets are bound, are valid and binding, in full force and effect and enforceable against the Company or any such Subsidiary, as the case may be, and to the 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) No Material Contract will, by its terms and (C) will continue terms, terminate as a result of the Transactions or require any consent from any party thereto in order to be legal, valid, binding, enforceable, and remain in full force and effect in all material respects following immediately after the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any Effective Time.
(d) There are no contracts or agreements of the Company Subsidiaries, nor to having terms or conditions which have had a Company Material Adverse Effect which is continuing or that materially impair the Knowledge ability of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractsconduct its business as currently conducted.
Appears in 2 contracts
Samples: Merger Agreement (Blackbaud Inc), Merger Agreement (Convio, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) All Contracts required to be filed as exhibits to the Investor or its representatives true, correct Company SEC Documents have been so filed in a timely manner. Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete copies list of each of the following Contracts to which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary or any of their assets or businesses are bound (eachand any amendments, a “Material Contract”supplements and modifications thereto):
(i1) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement Contract that is a “material contract” within the meaning of (as such term is defined in Item 601(b)(10) of Regulation S-KK of the Exchange Act other than any such Contract that is not required to be filed under clause (iii)(C) thereof);
(iv2) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments employment Contract that has an aggregate future liability in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries 1,000,000 and is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled terminable by the Company or a Company Subsidiary without penalty on by notice of not more than 90 60 days’ notice;
(xii3) any material hedgecollective bargaining agreement or other Contract with any labor organization, collar, option, forward purchasing, swap, derivative union or similar agreement, understanding or undertakingassociation;
(xiii4) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict Contract that limits in any material respect the ability of the Company or any Company Subsidiary to solicit customers (or, following the consummation of the Transactions, would limit in any material respect the ability of Parent or any Parent Subsidiary, including the Surviving Corporation or the manner Surviving Company) to compete in whichany line of business or with any Person or in any geographic area;
(5) any Contract that would be required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;
(6) any Contract for the lease of real property by the Company or any Company Subsidiary that by its terms calls for aggregate annual rent payments of more than $2,000,000 by the Company and the Company Subsidiaries;
(7) any license, sublicense, option or other Contract relating in whole or in part to the Company Intellectual Property (including any license or other Contract under which the Company or a Company Subsidiary is licensee or licensor of any Intellectual Property) or to any Technology, in each case material to the Company and the Company Subsidiaries, taken as a whole, other than licenses granted by the Company or Company Subsidiaries to clients in the Ordinary Course of Business or license agreements for software that is generally commercially available;
(8) any Contract or series of related Contracts relating to indebtedness for borrowed money (i) in excess of $5,000,000 or (ii) that becomes due and payable as a result of the Transactions;
(9) any 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 (other than the localities Company or a Company Subsidiary), in which, all any such case that is in excess of $10,000,000;
(10) any Contract that provides for any standstill or similar obligations to which the Company or any portion Company Subsidiary is subject or a beneficiary thereof, which is material to the Company and Company Subsidiaries taken as a whole (or, following the consummation of the business Transactions, would be material to Parent or any Parent Subsidiary, including the Surviving Corporation or the Surviving Company);
(11) any Contract (including a purchase order) with any of the Company’s top-50 suppliers (measured by dollar volume of purchases of the Company during the twelve months ended June 30, 2010);
(12) any master services agreement (or similar master agreements), human resources services agreement, administrative services agreement or similar client agreement pursuant to which the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or and/or any of the Company Subsidiaries provides (i) services or products to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on client in its benefits outsourcing segment under which the Company and the Company Subsidiaries which have recognized or are a party reasonably expected to such contractrecognize more than $10,000,000 in revenues in any fiscal year, (Bii) services or products to any client in its HR BPO segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year or (iii) services or products to any client in its consulting segment under which the Company and the Company Subsidiaries have recognized or are reasonably expected to recognize more than $10,000,000 in revenues in any fiscal year;
(13) any Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of revenues, profits, losses, costs, or liabilities by the Company or any Company Subsidiary with any other Person involving a potential combined commitment or payment by the Company and any Company Subsidiary in excess of $5,000,000 annually;
(14) any other Contract not otherwise required to be disclosed pursuant to this Section 3.11(a) that has an aggregate payment obligation to any Person in excess of $20,000,000 and is not terminable by the Company or a Company Subsidiary by notice of not more than 60 days; or
(15) any Contract that is material to the business of the Company and the Company Subsidiaries, taken as a whole, that would or would reasonably be expected to prevent, materially delay or impair the consummation of the Transactions.
(b) To the Knowledge of the Company, all Contracts set forth or required to be set forth in Section 3.11(a) of the Company Disclosure Letter or filed or required to be filed as exhibits to the Company SEC Documents (the “Company Contracts”) are valid, binding and in full force and effect and are enforceable by the Company or the applicable Company Subsidiary in accordance with its terms their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought and (C) will continue except for such failures to be legal, valid, binding, enforceable, and in full force and effect or enforceable that, individually or in all material respects following the consummation of the transactions contemplated by the Transaction Documentsaggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of the Company Subsidiaries, nor to To the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to or the Knowledge of the Company, each of the other parties thereto, have applicable Company Subsidiary has performed in all material respects all material obligations required to be performed by them it under each Material Contractthe Company Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder and, to the Knowledge of the Company, no event has occurred that other party to any Company Contract is (with or without notice or lapse of time would constitute a material time, or both) in breach or default in any material respect thereunder. Since October 1, 2009, to the Knowledge of the Company, neither the Company nor any of the Company Subsidiaries has received written notice of any actual, alleged, possible or permit termination, modificationpotential violation of, or accelerationfailure to comply with, under any material term or requirement of any Company Contract. To the Material ContractsKnowledge of the Company, neither the Company nor any of the Company Subsidiaries has received any written notice of the intention of any party to terminate any Company Contract.
Appears in 2 contracts
Samples: Merger Agreement (Aon Corp), Merger Agreement (Hewitt Associates Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of Schedule 4.7(a) lists each of the following Contracts of each Company Entity and/or its Subsidiaries (each such Contract set forth or required to which be set forth on Schedule 4.7(a), together with all Real Property Leases listed or required to be listed on Schedule 4.6(a), collectively, the Company or any Company Subsidiary is a party (each, a “Material ContractContracts”):
(i) Any joint venture, partnership, limited liability company or other similar Contract and any contract Contract for or agreement relating to indebtedness for borrowed moneyany investment in any other Person (whether through the acquisition of an equity interest, letters the making of credit, capital lease obligations, obligations secured by a Lien loan or interest rate advance or currency hedging agreements (including guarantees in respect of any of the foregoingotherwise, but in any event excluding extensions of trade payables, securities transactions and brokerage agreements arising credit in the ordinary course Ordinary Course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessBusiness);
(ii) Any Contract for the employment of any contract or agreement that constitutes a collective bargaining officer, individual employee or other arrangement with any labor unionperson on a full-time, part-time, consulting or other basis providing annual compensation in excess of $200,000;
(iii) Any Contract that, by its terms, expressly requires payments by such Company Entity or any contract of its Subsidiaries in excess of $200,000, during calendar year 2016 or agreement that is a “material contract” within 2017, which cannot be canceled by the meaning of Item 601(b)(10) of Regulation S-Kother party to such Contract without penalty or without more than ninety 90 days’ notice;
(iv) any lease or agreement under which the Any Contract that, by its terms, expressly requires payments to such Company Entity or any of the Company its Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000200,000, during calendar year 2016 or 2017, which cannot be canceled by the other party to such Contract without penalty or without more than ninety 90 days’ notice;
(v) any lease or agreement under which the Company or any Except for Contracts relating to trade payables, all Contracts relating to Indebtedness, in each case having an outstanding principal amount in excess of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries$200,000;
(vi) Any Contract (A) prohibiting or restricting, in any contract material respect, any Company Entity or agreement limitingany Subsidiary of a Company Entity, or that following the Closing would purport to prohibit or restrict, in any material respect, the ability of the Company Purchaser or any of the Company Subsidiaries to engage its Affiliates, from freely engaging in any line of business or to compete, whether by restricting territories, customers or otherwiseservices, or from competing with any Person, (B) providing for exclusivity provisions restricting, in any other material respect, with any PersonCompany Entity or Subsidiary of a Company Entity or that following the Closing would purport to restrict, in any material respect, the Purchaser or any of its Affiliates or (C) that contains “most favored nation” or similar provisions for the benefit of any Person other than a Company Entity or Subsidiary of a Company Entity;
(vii) All Contracts that relate to the sale of any settlement, conciliation of such Company Entity’s or similar agreement, the performance of which will involve payment after the Closing Date of its Subsidiaries’ assets for consideration in excess of $500,000200,000, which Contracts either (A) were entered into on or after January 1, 2013 or (B) otherwise impose any material obligations or confer any material rights on any Company Entity or Subsidiary of a Company Entity that remain in effect as of the date of this Agreement, in each case, other than in the Ordinary Course of Business;
(viii) All Contracts that relate to the acquisition of any contract business, capital stock or agreement other equity interests or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $200,000, which Contracts either (A) were entered into on or after January 1, 2013 or (B) otherwise impose any material obligations or confer any material rights on any Company Entity or Subsidiary of a Company Entity that relates to Intellectual Property Rights (remain in effect as of the date of this Agreement, in each case, other than a license granted to in the Company for commercially available software licensed on standard terms with a total replacement cost Ordinary Course of less than $500,000)Business;
(ix) any contract Any Contract providing for unperformed obligations in the nature of indemnification, “earn-out” or agreement that concerns the sale other contingent payment obligations of such Company Entity or such Subsidiary in connection with an acquisition or disposition of any material portion of the Company’s an operating business;
(x) All collective bargaining agreements or Contracts with any alliancelabor organization, cooperation, joint venture, shareholders, partnership union or similar agreement involving a sharing of profits or losses relating association to the which such Company Entity or any Company Subsidiary;of its Subsidiaries is a party; and
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;All Material IP Agreements.
(xiib) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in whichExcept as set forth on Schedule 4.7(b), all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which Contracts are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation are enforceable against, such Company Entity and/or one or more of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company its Subsidiaries, nor as the case may be, and, to the Knowledge of the CompanyCompany Entities, the other parties thereto, in accordance with their terms, subject to the General Enforceability Exceptions. Except as set forth on Schedule 4.7(b), no Company Entity or any other party thereto of its Subsidiaries, as the case may be, is (with or without the lapse of time or the giving of notice, or both) in material violation breach or default in any respect under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be acceleratedand, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the CompanyCompany Entities, no event has occurred that other party to any Material Contract is (with notice or without the lapse of time would constitute a or the giving of notice, or both) in material breach or default or permit termination, modification, or acceleration, under the Material Contractsin any respect thereunder.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (CEB Inc.)
Contracts. The (a) Except as filed as an exhibit to a Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) SEC Document prior to the Investor or its representatives truedate of this Agreement, correct and complete copies of except for the Company Benefit Plans, each of the following contracts, agreements or arrangements are set forth in Section 3.18(a) of the Company Disclosure Letter:
(i) any agreement relating to indebtedness (other than agreements among direct or indirect wholly owned Company Subsidiaries) in excess of $10 million;
(ii) any joint venture, partnership, limited liability company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iii) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any material business or material real property (whether by merger, sale of stock, sale of assets or otherwise) exceeding $15 million individually or $30 million in the aggregate for a series of related agreements;
(iv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which the Company or any Company Subsidiary is a party (eachor, a “Material Contract”):
(iafter the Effective Time, the Surviving Corporation or its Subsidiaries) any contract may engage or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien the manner or interest rate or currency hedging agreements (including guarantees locations in respect of which any of the foregoing, but them may so engage in any event excluding trade payables, securities transactions and brokerage agreements arising business in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or is currently engaged including any of the Company Subsidiaries is lessee ofcovenant not to compete, or holds or operates, any property owned by any other Person with annual rent payments in excess that could require the disposition of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company assets or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xiv) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled providing for the production by the Company or a any Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current product on an exclusive or former directors, officers, employees requirements basis or consultants of the purchase by the Company or any Company Subsidiary of the Company Subsidiaries other thanany product on an exclusive or output basis, with respect to non-executive employees and consultants, in each case not entered into in the ordinary course of businessbusiness consistent with past practice;
(xivvi) any contract “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC).
(vii) any agreement that involves expenditures or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability receipts of the Company or any Company Subsidiary in excess of $10 million per year not entered into in the ordinary course of business consistent with past practice;
(viii) any agreement by which the Company or any Company Subsidiary licenses or otherwise obtains the right to solicit customers use material Intellectual Property rights of any other Person (other than licenses for readily available commercial software) or by which the manner Company or any Company Subsidiary is restricted in whichits right to use or register, or licenses or otherwise permits any other Person to use, enforce, or register any material Company Owned Intellectual Property; or
(ix) any agreement the localities termination or breach of which would reasonably be expected to result in whicha Material Adverse Effect on the Company.
(b) The agreements, all or any portion arrangements and plans that are required to be set forth in Section 3.18(a) of the Company Disclosure Letter, or that would be required to be set forth but for the filing thereof as exhibits to the Company SEC Documents, are referred to herein as the “Company Contracts”. Except with respect to matters that, individually or in the aggregate, have not resulted in and would not reasonably be expected to result in a material adverse effect on the business or operations of the Company and its Subsidiaries, each Company Contract is a valid and binding agreement of the Company or a Company Subsidiary, as the Company Subsidiaries is or can be conductedcase may be, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceableeffect, and in full force and effect in all material respects following the consummation none of the transactions contemplated by the Transaction Documents. Neither the Company, any Company nor any of the Company SubsidiariesSubsidiary or, nor to the Knowledge knowledge of the Company, any other party thereto is in default or breach in any material violation respect under the terms of any such Company Contract; and since January 1, 2009, neither the Company nor any Company Subsidiary, as the case may be, has waived any material right or default relinquished any material benefit under any Material such Company Contract. No benefits under any Material Contract will be increased, ; and no vesting event has occurred, which, after the giving of any benefits under any Material Contract will be acceleratednotice, with lapse of time, or otherwise, would constitute a material default by the occurrence of Company or any of the transactions contemplated by the Transaction DocumentsCompany Subsidiary or, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge knowledge of the Company, any other party under such Company Contract. True, correct and complete copies of each of the other parties thereto, such Company Contract (including all modifications and amendments thereto and waivers thereunder) have performed in all material respects all material obligations required been made available to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material ContractsParent.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Terra Industries Inc)
Contracts. The (a) Neither the Company has Previously Disclosed nor any of its Subsidiaries is a party to or provided (is bound by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each any of the following to which Contracts that remain in effect as of the Company or any Company Subsidiary is a party (each, a “Material Contract”):date hereof:
(i) any contract employment or agreement relating to indebtedness for borrowed moneyconsulting Contract with any director, officer, employee, other than (A) “at-will” offer letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising delivered in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment(B) in excess those that are terminable by the Company or any of $500,000, except for those issued in its Subsidiaries on no more than thirty (30) days’ notice without liability or financial obligation to the ordinary course of businessCompany;
(ii) any contract Contract (including any stock option Contract) or agreement that constitutes a collective bargaining plan (including, without limitation, any stock option plan, stock appreciation right plan or other arrangement with any labor union;
(iiistock purchase plan) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance benefits of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no or the vesting of any benefits under any Material Contract of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (including the Transaction Documents, nor will Offer and the Merger) or the value of any of the benefits under any Material Contract of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any Contract that provides for indemnification of any director, officer, employee or agent, or any guaranty, other than Contracts entered into in the Transaction Documents. The ordinary course of business;
(iv) any Contract containing any covenant limiting in any respect the right of the Company or any of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;
(v) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any Person other than the Company’s Subsidiaries;
(vi) any dealer, distributor or sales representative (in-bound or out-bound), marketing or development Contract, or any Contract pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or any of its Subsidiaries;
(vii) any Contract to license any third party to manufacture or reproduce any Company product, service or technology (including, without limitation, any ASIC or ADG agreements), or any Contract to sell or distribute any Company products, service or technology except Contracts with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;
(viii) any Contracts to provide source code to any third party for any product or technology that is material to the Company and its Subsidiaries taken as a whole;
(ix) any Contracts relating to the borrowing of money or the extension of credit;
(x) any settlement Contract under which the Company has ongoing obligations;
(xi) any Contract with a customer of the Company involving payments in excess of One Hundred Thousand Dollars ($100,000) in the aggregate; or
(xii) any Contract to which Phoenix Technologies or any of its Subsidiaries or other affiliates is a party.
(b) Neither the Company nor any of its Subsidiaries, and nor to the Knowledge knowledge of the Company, each any other party to a Company Contract, is in breach, violation or default under, and neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the other parties thereto, have performed in all material respects all material obligations terms or conditions of any of the Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound that are required to be performed by them under each Material disclosed in the Company Disclosure Schedule (any such Contract, a “Company Contract” and together, the “Company Contracts”) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the Knowledge aggregate). The Company has provided to Parent a complete and accurate copy of any Contracts the Company has with the Company’s top fifty (50) customers, based upon the cumulative revenues of the CompanyCompany and its Subsidiaries for the trailing thirty (30) month period ended March 31, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts2002.
Appears in 2 contracts
Samples: Merger Agreement (Insilicon Corp), Merger Agreement (Synopsys Inc)
Contracts. The (a) Except for (i) those Contracts listed in Section 2.22(a) of the Company has Previously Disclosed Disclosure Schedule, indicating for each Contract the applicable sub-section of this Section 2.22(a), or provided (by hard copy, electronic data room or otherwiseii) filed as exhibits to the Investor Company SEC Documents (such Contracts, together with the Contracts listed in Section 2.10(c), Section 2.13(b) and Section 2.21 of the Company Disclosure Schedule, being collectively referred to herein as the “Material Contracts”) neither the Company nor any of its subsidiaries is a party to or bound by:
(i) any distributor, sales, agency or manufacturer’s representative, consulting or technology sharing arrangements involving in the case of any such Contract or arrangement payments of more than (or that could reasonably be expected to be more than) $100,000 over any twelve (12) consecutive month period;
(ii) any continuing Contract with vendors for the purchase of materials, supplies, equipment or services involving in the case of any such Contract payments of more than $100,000 over any twelve (12) consecutive month period;
(iii) any trust indenture, mortgage, promissory note, loan agreement or other Contract for the borrowing of money or indebtedness, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(iv) any Contract for capital expenditures in excess of $100,000 in the aggregate;
(v) any Contract limiting, or purporting to limit, in any material respect, the freedom of the Company or its representatives truesubsidiaries or affiliates at any time to engage in any line of business, correct and complete copies to acquire any product or asset from any other Person outside the ordinary course of each business, to sell any product or asset to, or to perform any service for, any Person outside the ordinary course of business, or to compete with any other Person, including any Contract providing for exclusivity or any similar requirement, granting to the other party “most favored nation” terms, or which could limit in any material respect the freedom of the following Surviving Corporation to continue the development, manufacture, marketing or distribution of the Company’s products and services or operation of the Company’s business after the Effective Time in substantially the same manner as the Company as of the Execution Date;
(vi) any confidentiality, secrecy or non-disclosure Contract that, individually, materially affects or could be reasonably anticipated to materially affect the business or operations of the Company or its subsidiaries;
(vii) any Contract pursuant to which the Company or any Company Subsidiary of its subsidiaries is a party (eachlessor of real property or any machinery, a “Material equipment, motor vehicles, office furniture, fixtures or other tangible personal property involving in the case of any such tangible personal property contact more than $100,000 over the life of the Contract”):;
(iviii) any contract Contract with any Person with whom the Company does not deal at arm’s length, including any affiliate of the Company or agreement relating to indebtedness any of its subsidiaries;
(ix) any Contract that provides for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect the indemnification of any officer, director, employee or agent outside of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(iix) any contract agreement of guarantee, support, indemnification, assumption or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee endorsement of, or holds any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or operates, any property owned by otherwise) or indebtedness of any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract Contract pursuant to which any bank or agreement involving annual payments in excess of $500,000 that cannot be cancelled by financial institution provides or supplies vault cash to the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeany of its subsidiaries;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingContract with an armored car carrier;
(xiii) any contract joint venture, partnership or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees joint research and consultants, in the ordinary course of businessdevelopment Contract;
(xiv) any contract Contract the terms of which materially change upon the occurrence of the Merger or agreement containing a change of control or any Contract that impairs or reduces the Company’s rights, accelerates or increases the Company’s obligations, or gives any party thereto other than the Company the right to terminate the Contract upon the occurrence of the Merger or a change of control, which change, impairment, reduction, acceleration, increase or termination would, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect; or
(xxv) non-competition any other Contract that is a material Contract to the Company or exclusive dealing obligations or other obligation which purports its subsidiaries.
(b) Neither the Company nor its subsidiaries is a party to limit or restrict in any respect the ability Contract with a customer of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, that: (i) incorporates by reference all or any portion of the business of the Company such customer’s request for proposal (i.e. “RFP”) or the Company Subsidiaries is or can be conductedCompany’s response to such RFP, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (Aii) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated terminable by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor customer upon providing thirty (30) days or less prior notice to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 2 contracts
Samples: Merger Agreement (Global Cash Access Holdings, Inc.), Merger Agreement (Cash Systems Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copyExcept for the MHPS Employee Plans, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following contracts, agreements or arrangements of Seller or its Subsidiaries (with respect to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):Business) in effect as of the date of this agreement are set forth in Section 4.02(q)(i) of the Seller Disclosure Letter:
(i) any contract mortgage, indenture, guarantee, bond, loan or credit agreement, security agreement or other agreement relating to indebtedness for borrowed moneyor extension of credit exceeding $2 million individually, letters other than trade receivables;
(ii) any joint venture, partnership, limited liability or other similar agreement that terminates by its terms, gives the counterparty a right to terminate, or requires the consent of creditthe counterparty thereto, in connection with the transactions contemplated by this Agreement;
(iii) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any material portion of the Business or any material real property (whether by merger, sale of stock, sale of assets or otherwise) occurring in the three (3) years prior to the date hereof;
(iv) any agreement relating to capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements expenditures and involving future payments exceeding $1 million individually;
(v) any agreement (including guarantees any exclusivity agreement) that purports to limit or restrict in any material respect either the type of business in which Seller and its Subsidiaries (with respect to the Business) may engage or the manner or locations in which any of them may so engage, including any covenant not to compete, or that could require the disposition of any material assets or line of business of Seller or its Subsidiaries (with respect to the foregoing, but in Business);
(vi) any event agreement (excluding trade payables, securities transactions and brokerage agreements arising in purchase orders) that involves performance of services or delivery of goods or materials by or to Seller or its Subsidiaries (with respect to the ordinary course Business) of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) an amount or value in excess of $500,0005 million individually;
(vii) any material dealer, except for those issued in distribution, joint marketing, joint venture, partnership, revenue sharing, merchant, strategic alliance, affiliate or development agreement or outsourcing arrangement outside of the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract agreement regarding a material leasehold or agreement that relates to Intellectual Property Rights (other than a license granted to similar interest held by Seller or its Subsidiaries or used or occupied in connection with the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Business;
(ix) any contract or material agreement that concerns the sale or acquisition of with any material portion of the Company’s business;Governmental Entity; or
(x) any allianceagreements involving payments by, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits amounts due to Seller or losses relating its Subsidiaries (with respect to the Company or any Company Subsidiary;
(xiBusiness) any contract or agreement involving annual payments in excess of $500,000 2 million that canare not cancelable within 180 calendar days or that are cancelable but cancellation would entail a penalty, cost or other liability in excess of $2 million. The agreements, arrangements and plans that are required to be cancelled by set forth in Section 4.02(q) of the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect Seller Disclosure Letter are referred to herein as the “Business Contracts”. Subject to the employment or service of any current or former directorsBankruptcy and Equity Exception, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries each Business Contract is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on agreement of Seller or its Subsidiaries, as applicable, and, to the Company Knowledge of Seller, the other parties thereto, and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable effect. Except as would not result in accordance with or would not reasonably be expected to result in a MHPS Material Adverse Effect, (i) neither Seller nor its Subsidiaries are in default or breach in any material respect under the terms of any such Business Contract or any Contract evidencing financial indebtedness, (ii) since January 1, 2016, neither Seller nor its Subsidiaries have waived any right or relinquished any benefit under any such Business Contract or any Contract evidencing financial indebtedness, and (Ciii) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that occurred, which, after the giving of notice, with notice or lapse of time time, or otherwise, would constitute a material breach default by Seller or default its Subsidiaries under such Business Contract or permit terminationany Contract evidencing financial indebtedness. True, modification, or acceleration, under the Material Contractscorrect and complete copies of each Business Contract (including all modifications and amendments thereto and waivers thereunder) have been made available to Buyer.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Terex Corp), Stock and Asset Purchase Agreement
Contracts. The (a) Section 3.13(a) of the Company has Previously Disclosed or provided (by hard copyDisclosure Letter sets forth, electronic data room or otherwise) to as of the Investor or its representatives date hereof, a true, correct and complete copies list of each of the following Contract (other than any Company Real Property Lease or Benefit Plan) that is in effect and to which the Company or any Company Subsidiary is a party (eachor which binds their respective properties or assets, a “Material Contract”):and that falls within any of the following categories:
(i) any contract joint venture, partnership, or agreement relating strategic alliance Contract with a Third Party member that is material to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any the business of the foregoingCompany and the Company Subsidiaries, but taken as a whole, in which the Company or any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessCompany Subsidiary owns an Equity Interest;
(ii) any contract or agreement Contract that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which requires aggregate capital expenditures by the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in an amount in excess of four million dollars ($500,0004,000,000) per annum individually, other than (A) any purchase order or Contract for supply, inventory or trading stock acquired in the ordinary course of business, or (B) any ordinary course Contracts with respect to land acquisitions, land development and construction;
(viii) any lease settlement, conciliation or agreement under which similar Contract (A) with any Governmental Entity, (B) that requires the Company or any of the Company Subsidiaries is lessor of, to pay any monetary consideration of more than four hundred thousand dollars ($400,000) after the date of this Agreement or permits (C) that would otherwise limit in any Person to hold or operate, any property owned or controlled by material respect the operation of the Company or any Company Subsidiary (or, to the Knowledge of the Company SubsidiariesCompany, Parent or any of its other affiliates from and after the Closing) as currently operated;
(viiv) any contract or agreement limiting, Contract that contains any covenant limiting in any material respect, respect the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person, in each case, in any geographic area;
(viiv) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
Contract (viiiA) any contract or agreement that relates to Intellectual Property Rights any completed acquisition, divestiture, merger or similar transaction and contains representations, covenants, indemnities or other obligations that remain in effect (excluding any transactions solely among the Company and any wholly owned Company Subsidiary) and that are material to the business of the Company and the Company Subsidiaries, taken as a whole, (B) for any pending acquisition, directly or indirectly (by merger or otherwise) of a portion of the assets (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract goods, products or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, services in the ordinary course of business;
) or Equity Interests of any Person for aggregate consideration in excess of two million dollars (xiv$2,000,000) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation pursuant to which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary has continuing “earn-out” or other similar contingent payment obligations following the date hereof in excess of two million dollars ($2,000,000) or (C) that gives any Person the right to solicit customers or the manner in which, or the localities in which, all or acquire any portion of the business assets of the Company or the Company Subsidiaries (excluding ordinary course commitments to purchase homes, lots, goods, products or services) after the date hereof with a total consideration of more than two million dollars ($2,000,000);
(vi) any Contract that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or can be conductedother Contract providing for or securing indebtedness for borrowed money or deferred payment (in each case, whether incurred, assumed, guaranteed or secured by any asset) in an outstanding principal amount in excess of one million dollars (y$1,000,000), other than any such contract between the Company or any Company Subsidiary, on the one hand, and any other Company Subsidiary, on the other hand;
(vii) right any Contract for (A) the sale of first refusal any land parcels (whether or right of first offer or similar right or that limits or purports to limit the ability not developed) of the Company or a Company Subsidiary with a purchase price in excess of four million dollars ($4,000,000) (other than individual home sales in the ordinary course of business), (B) the purchase of any land parcels (whether or not developed) of the Company Subsidiaries or a Company Subsidiary or (C) the option to ownpurchase any land parcels (whether or not developed) of the Company or a Company Subsidiary, operatein the case of clauses (B) and (C), sell, transfer, pledge or otherwise dispose with a total purchase price for the land parcels subject thereto in excess of any material assets or eight million dollars ($8,000,000) (other than individual home sales in the ordinary course of business); and
(xvviii) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on pursuant to which the Company or any Company Subsidiary receives a license to use any material Intellectual Property that is used in the business (other than licenses for “off-the-shelf” or other software widely available on generally standard terms and the Company Subsidiaries which are a party to such contract, conditions) or (B) pursuant to which the Company or any Company Subsidiary grants to a third party a license to use any material Company Intellectual Property. Each Contract of the type described in this Section 3.13(a) is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract in effect as of the date hereof have been made available to Parent (including pursuant to agreed-upon procedures to protect competitively sensitive information) or publicly filed with the SEC.
(b) Except as would not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid, binding and enforceable obligation of the Company or the Company Subsidiary party thereto and is in full force and effect and enforceable in accordance with its terms (except as may be limited by the Enforceability Exceptions) and (Cii) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation none of the transactions contemplated by the Transaction Documents. Neither the Company, any Company nor any of the Company SubsidiariesSubsidiary or, nor to the Knowledge of the Company, any other party thereto counterparty is in material violation breach or default under any Company Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 2 contracts
Samples: Merger Agreement (Taylor Morrison Home Corp), Agreement and Plan of Merger (William Lyon Homes)
Contracts. The (a) Except as filed as an exhibit to a Company has Previously Disclosed SEC Document prior to the date of this Agreement, and except for the Company Benefit Plans, neither the Company nor any Company Subsidiary is a party to or provided bound by, nor are any of their respective assets, businesses or operations party to, or bound or affected by, or receive benefits under:
(i) any agreement relating to indebtedness (other than agreements among direct or indirect wholly-owned Company Subsidiaries) in excess of $5 million;
(ii) any joint venture, partnership, limited liability company or other similar agreements or arrangements relating to the formation, creation, operation, management or control of any partnership, strategic alliance or joint venture;
(iii) any agreement or series of related agreements, including any option agreement, relating to the acquisition or disposition of any material business or material real property (whether by hard copymerger, electronic data room sale of stock, sale of assets or otherwise);
(iv) any agreement (including any exclusivity agreement) that purports to limit or restrict in any material respect either the Investor or its representatives true, correct and complete copies type of each of the following to business in which the Company or any Company Subsidiary is a party (eachor, a “Material Contract”):
(iafter the Effective Time, the Surviving Corporation or its Subsidiaries) any contract may engage or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien the manner or interest rate or currency hedging agreements (including guarantees locations in respect of which any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to them may so engage in any business including any covenant not to compete or could require the disposition of any material assets or line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xiv) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled providing for the production by the Company or a any Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current product on an exclusive or former directors, officers, employees requirements basis or consultants of the purchase by the Company or any Company Subsidiary of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessany product on an exclusive or output basis;
(xivvi) any contract other agreement or amendment thereto that would be required to be filed as an exhibit to any Company SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S—K under the Securities Act) that has not been filed as an exhibit to or incorporated by reference in the Company SEC Documents filed prior to the date of this Agreement;
(vii) any agreement containing any (x) non-competition that involves expenditures or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability receipts of the Company or any Company Subsidiary in excess of $5 million per year not entered into in the ordinary course of business consistent with past practice;
(viii) any agreement by which the Company or any Company Subsidiary licenses or otherwise obtains the right to solicit customers use material Intellectual Property rights of any other Person (other than licenses for readily available commercial software) or by which the Company or any Company Subsidiary is restricted in its right to use or register, or licenses or otherwise permits any other Person to use, enforce, or register any material Company Owned Intellectual Property; or
(ix) any agreement the termination or breach of which or the manner failure to obtain consent in whichrespect of would reasonably be expected to result in a Material Adverse Effect on the Company.
(b) The agreements, commitments, arrangements and plans, whether written or the localities oral, listed or required to be listed in which, all or any portion Section 3.18(a) of the business Company Disclosure Letter are referred to herein as the “Company Contracts.” Each Company Contract is a valid and binding agreement of the Company or a Company Subsidiary, as the Company Subsidiaries is or can be conductedcase may be, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceableeffect, and in full force and effect in all material respects following the consummation none of the transactions contemplated by the Transaction Documents. Neither the Company, any Company nor any of the Company SubsidiariesSubsidiary or, nor to the Knowledge knowledge of the Company, any other party thereto is in default or breach in any material violation or default respect under the terms of any Material such Company Contract. No benefits under any Material Contract will be increased, ; and no vesting event has occurred, which, after the giving of any benefits under any Material Contract will be acceleratednotice, with lapse of time, or otherwise, would constitute a material default by the occurrence of Company or any of the transactions contemplated by the Transaction DocumentsCompany Subsidiary or, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge knowledge of the Company, any other party under such Company Contract. True, correct and complete copies of each of the other parties thereto, such Company Contract (including all modifications and amendments thereto and waivers thereunder) have performed in all material respects all material obligations required been made available to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material ContractsParent.
Appears in 2 contracts
Samples: Merger Agreement (CF Industries Holdings, Inc.), Merger Agreement (CF Industries Holdings, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copya) Except (i) for this Agreement, electronic data room or otherwise(ii) for the Contracts filed as exhibits to the Investor SEC Reports prior to the date hereof, (iii) for the Company Plans and Company Stock Plans or its representatives true, correct and complete copies of each (iv) as set forth in Section 3.8 of the following to which Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its subsidiaries is party to or bound by any Company Subsidiary is a party (each, a “Material Contract”):Contract that:
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which contains covenants binding upon the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, its Affiliates that materially restrict the ability of the Company or any of the Company Subsidiaries its Affiliates to engage compete in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other geographic area that, in each case, are material respectto the Company and its subsidiaries taken as a whole as of the date of this Agreement, with any Personexcept for leases;
(viiii) any settlementis a material partnership, conciliation joint venture or similar agreementContract that, in each case, is material to the performance Company and its subsidiaries taken as a whole as of which will involve payment after the Closing Date date of consideration in excess of $500,000this Agreement;
(viiiiii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of under which the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, its subsidiaries is liable for indebtedness in the ordinary course excess of business$50,000,000;
(xiviv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that expressly limits or purports to limit otherwise restricts the ability of the Company or any of its subsidiaries to pay dividends or make distributions to its shareholders (excluding restrictions applicable only upon a default or event of default);
(v) by its terms calls for aggregate payments by the Company Subsidiaries and its subsidiaries under such Contract of more than $50,000,000 over the remaining term of such Contract (other than this Agreement, Contracts subject to ownclause (iii) above, operate, sell, transfer, pledge purchase orders for the purchase of inventory and/or equipment in the ordinary course of business and leases);
(vi) relates to the acquisition or otherwise dispose disposition of any material business (whether by merger, sale of stock, sale of assets or businessotherwise) for consideration in excess of $50,000,000; and
(xvvii) any material contract by its terms calls for aggregate payments to the Company and its subsidiaries under such Contract of more than $50,000,000 over the remaining term of such Contract (other than this Agreement or agreement that would require any consent purchase orders for the purchase of inventory and/or equipment in the ordinary course of business). Each Contract (i) set forth (or approval required to be set forth) in Section 3.8 of a counterparty the Company Disclosure Schedule, (ii) filed as an exhibit to the SEC Reports as a result "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act, or (iii) disclosed by the Company on a Current Report on Form 8-K as a "material contract" (excluding any Company Plan), is referred to herein as a "Company Material Contract".
(b) Each of the consummation of the transactions contemplated by this Agreement. Each Company Material Contract (A) Contracts is a legal, valid and binding on obligation of, and enforceable against, the Company and or the Company Subsidiaries which are subsidiary that is a party thereto and, to such contractthe knowledge of the Company, (B) each other party thereto, and is in full force and effect in accordance with its terms, subject to the Bankruptcy and enforceable Equity Exception, except (i) to the extent that any Material Contract expires or terminates in accordance with its terms in the ordinary course of business consistent with past practice, and (Cii) will continue for such failures to be legal, valid, binding, enforceable, valid and binding or to be in full force and effect that do not have and would not reasonably be expected to have, individually or in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiariesaggregate, nor to the Knowledge of a Material Adverse Effect on the Company, any other .
(c) The Company or its subsidiary that is a party thereto to a Company Material Contract is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, compliance with all terms and no vesting requirements of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The each Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and no event has occurred that, with notice or the passage of time, or both, would constitute a breach or default by the Company or any of its subsidiaries under any such Company Material Contract, and, to the Knowledge knowledge of the Company, no other party to any Company Material Contract is in breach or default (nor has any event has occurred that which, with notice or lapse the passage of time time, or both, would constitute such a material breach or default) under any Company Material Contract, except in each case where such violation, breach, default or permit terminationevent of default does not have and would not reasonably be expected to have, modificationindividually or in the aggregate, or acceleration, under a Material Adverse Effect on the Material ContractsCompany.
Appears in 2 contracts
Samples: Merger Agreement, Agreement and Plan of Merger
Contracts. The (a) Except for the contracts and agreements described in Schedule 4.11 of the Company has Previously Disclosed Disclosure Schedule (collectively, the "COMPANY MATERIAL CONTRACTS"), neither Company nor the Company Subsidiaries is a party to or provided bound by the following contracts (by hard copywhich for purposes of this Agreement shall be deemed Company Material Contracts):
(i) any distribution or software manufacturer's representative contract that represents ten percent (10%) or more of Company's consolidated annual revenues;
(ii) any contract for the provision of software, electronic data room outsourcing or otherwiseconsulting services or computer hardware, including contracts billed on time plus materials and fixed-price contracts involving in the case of any such contact more than $3,000,000 per annum;
(iii) any contract related to the Investor provision of services to early-stage entities in consideration for, among other things, equity interests in such entities, along with any subscription or its representatives trueother agreements with respect to investments in such entities and instruments or securities evidencing such equity interests, correct and complete copies including any warrants or options;
(iv) any hedging arrangements, including any puts or call options;
(v) any trust indenture, mortgage, promissory note, loan agreement or other contract for the borrowing of each money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the following type required to be capitalized in accordance with US GAAP;
(vi) any contract for capital expenditures in excess of $3,000,000 in the aggregate;
(vii) any contract limiting in any material respect the freedom of the Company or any Company Subsidiary to engage in any line of business or to compete with any other Person;
(viii) any contract pursuant to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property involving in the case of the foregoing, but any such contract more than $3,000,000 in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)calendar year;
(ix) any contract with any Person (other than the Company or agreement that concerns any Company Subsidiary) with whom the sale Company or acquisition of any material portion Company Subsidiary does not deal at arm's length within the meaning of the Company’s businessCode;
(x) any allianceagreement of guarantee, cooperationsupport, joint ventureindemnification, shareholdersassumption or endorsement of, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person; or
(xi) any contract or agreement involving annual payments relating to the acquisition of a business for aggregate consideration in excess of $500,000 that cannot be cancelled by 1,000,000 entered into in the last three years.
(b) Company or a and each Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants has performed all of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contractit and is entitled to all benefits under, and to the Knowledge of the Company, is not alleged to be in default in respect of any Company Material Contract. Each of the Company Material Contracts is in full force and effect, unamended, and there exists no default or event has occurred that of default or event, occurrence, condition or act, with notice respect to Company or any Company Subsidiary or to the Knowledge of Company with respect to the other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or conditions, would constitute become a material breach or default or permit terminationevent of default under any Company Material Contract. True, modification, correct and complete copies of all Company Material Contracts have been delivered or acceleration, under the Material Contractsmade available to Parent.
Appears in 2 contracts
Samples: Merger Agreement (Ness Technologies Inc), Merger Agreement (Sapiens International Corp N V)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Section 3.16(a) of the following Company Disclosure Letter sets forth a list of all Material Contracts as of the date of this Agreement. For purposes of this Agreement, “Material Contract” means any Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound that:
(i) any contract is or agreement relating would be required to indebtedness for borrowed moneybe filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(ii) relates to the formation, letters of creditcreation, capital lease obligationsgovernance, obligations secured by a Lien economics or interest rate or currency hedging agreements (including guarantees in respect control of any joint venture, partnership or other similar arrangement, other than (x) with respect to any partnership that is wholly owned by the Company or any of its wholly owned Subsidiaries and (y) for the foregoingavoidance of doubt, but in any event excluding trade payablesmarketing, securities transactions licensing, manufacturing and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued distribution Contracts entered into in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) provides for indebtedness for borrowed money of the Company or any contract of its Subsidiaries having an outstanding or agreement that is a “material contract” within committed amount in excess of $10 million, other than (A) indebtedness solely between or among any of the meaning Company and any of Item 601(b)(10its wholly owned Subsidiaries or (B) letters of Regulation S-Kcredit;
(iv) relates to the acquisition or disposition of any lease business, assets or agreement properties (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $10 million (A) that was entered into after January 1, 2015 or (B) pursuant to which any 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 $5 million after the date hereof (in each case, excluding for the avoidance of doubt, acquisitions or dispositions of supplies, inventory, merchandise or products in the ordinary course of business or of supplies, inventory, merchandise, 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 its Subsidiaries);
(v) is a Contract (other than purchase orders under a master agreement) for the purchase of materials, supplies, goods, services, equipment or other assets pursuant to which the Company or any of the Company its Subsidiaries is lessee of, or holds or operates, would reasonably be expected to make payments of more than $10 million during any property owned by any other Person with annual rent payments in excess of $500,000fiscal year;
(vvi) is a Contract (other than purchase orders under a master agreement) with a customer of the Company or any lease or agreement under of its Subsidiaries pursuant to which the Company or any of its Subsidiaries received aggregate net payments of more than $10 million during the Company Subsidiaries is lessor offiscal year ended December 31, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries2016;
(vivii) contains any contract or agreement provision (A) limiting, in any material respect, the ability right of the Company or any of the Company its Subsidiaries to engage in any line business, make use of business or to competeany material Intellectual Property, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
, or operate anywhere in the world, or (viiB) granting any exclusivity right to any third party, or containing a “most favored nation” provision in favor of any third party, in each case, other than (x) a Contract that can be terminated on less than 90 days’ notice without resulting in a breach or violation of, or any acceleration of any rights or obligations or the payment of any penalty under, such Contract, (y) distribution or customer Contracts entered into in the ordinary course of business granting exclusive rights to sell or distribute certain of the Company’s and its Subsidiaries’ products or containing “most favored nation” provisions with respect to certain of the Company’s and its Subsidiaries’ products or (z) any settlement, conciliation provision in any license agreements for Intellectual Property limiting the Company’s and its Subsidiaries’ use of such Intellectual Property to specified fields of use or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;specified territories; or
(viii) any contract is a (A) license or agreement that relates similar Contract with respect to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any allianceXxxxx-Xxxxxx Act related litigation or (y) any products covered by an NDA and entered into since January 1, cooperation2011, joint ventureor (B) settlement, shareholderscoexistence agreement, partnership covenant not to xxx or similar agreement involving Contract with respect to any material Intellectual Property, in each case, to which the Company or any of its Subsidiaries is a sharing of profits party, beneficiary or losses relating otherwise bound (other than generally commercially available, “off the shelf” software programs or non-exclusive licenses granted by or to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments of its Subsidiaries in excess the ordinary course of $500,000 that canbusiness which do not be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) contain any material hedge, collar, option, forward purchasing, swap, derivative restriction or similar agreement, understanding condition on the use or undertaking;
(xiii) any contract or agreement with respect to the employment or service exploitation of any current or former directors, officers, employees or consultants of material Intellectual Property by the Company or any of the Company Subsidiaries other than, its Subsidiaries).
(b) Except with respect to non-executive employees and consultantsany Contract that has previously expired in accordance with its terms, in the ordinary course of business;
been terminated, restated or replaced, (xiva) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each each Material Contract (A) is legal, valid and binding on the Company and and/or any of its Subsidiaries to the Company Subsidiaries which are extent such Person is a party thereto, as applicable, and to such contractthe Knowledge of the Company, (B) each other party thereto, and is in full force and effect and enforceable in accordance with its terms and (C) will continue effect, except where the failure to be legal, valid, binding, enforceable, and binding or in full force and effect would not, individually or in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither aggregate, reasonably be expected to have a Material Adverse Effect, (b) the Company nor any and each of the Company its Subsidiaries, nor and, to the Knowledge of the Company, any other party thereto is thereto, have performed all obligations required to be performed by it under each Material Contract, except where such nonperformance would not, individually or in material violation the aggregate, reasonably be expected to have a Material Adverse Effect, (c) neither the Company nor any of its Subsidiaries have received written notice of the existence of any breach or default on the part of the Company or any of its Subsidiaries under any Material Contract. No benefits under any , except where such default would not, individually or in the aggregate, reasonably be expected to have a Material Contract Adverse Effect, (d) there are no events or conditions which constitute, or, after notice or lapse of time or both, will be increased, and no vesting constitute a default on the part of any benefits under any Material Contract will be accelerated, by the occurrence of Company or any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company its Subsidiaries, and or to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them any counterparty under each such Material Contract, Contract and (e) to the Knowledge of the Company, no event the Company has occurred not received any notice from any Person that with notice or lapse of time would constitute a material breach or default or permit termination, modificationsuch Person intends to terminate, or accelerationnot renew, under any Material Contract, except as would not, individually or in the aggregate, reasonably be expected to have a Material ContractsAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Fresenius SE & Co. KGaA), Merger Agreement (Akorn Inc)
Contracts. The (a) Except as disclosed in SCHEDULE 4.20, neither the Company has Previously Disclosed nor its Subsidiaries is a party or provided (by hard copy, electronic data room or otherwise) subject to the Investor or its representatives true, correct and complete copies of each any of the following to which the Company written or any Company Subsidiary is a party (each, a “Material Contract”):
oral contracts and agreements: (i) any contract union or agreement collective bargaining agreements and any employment contracts; (ii) any contracts with agents, consultants, advisors, salespersons, sales representatives, distributors or dealers; (iii) any contracts or commitments for capital expenditures or the acquisition of fixed assets providing for payments of $10,000 in the aggregate; (iv) any contracts relating to the rental or use of equipment, other personal property or fixtures involving payment of fixed or contingent annual rentals or sums in excess of $10,000; (v) any contracts relating in any way to indebtedness for borrowed moneymoney or evidenced by a bond, letters debenture, note or other evidence of indebtedness (whether secured or unsecured) including but not limited to, indebtedness by way of lease or installment purchase arrangement, guarantee, undertaking on which others rely in extending credit, capital lease obligationsor otherwise, obligations secured by a Lien and any conditional sales contracts, chattel and purchase money mortgages and other security arrangements with respect to any equipment, other personal property or interest rate or currency hedging agreements fixtures; (including guarantees in respect of vi) any contracts limiting the freedom of the foregoing, but Company or its Subsidiaries to engage in or to compete in any event excluding trade payablesline of business or with any person or in any area or to use or disclose any information in its possession; (vii) any license or franchise agreements, securities transactions and brokerage agreements arising either as licensor or licensee or as franchisee or franchisor; (viii) any contracts or commitments not made in the ordinary course of business, intercompany indebtedness and immaterial leases ; (ix) any joint venture or partnership contracts; (x) any contracts or agreements for telephones, copy machines, facsimile machines and other office equipment) in excess the purchase of $500,000, except for those issued any materials or supplies or services in the ordinary course of business;
business and involving more than $10,000 in consideration in each such case; (iixi) any contract contracts or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement agreements under which either the Company or its Subsidiaries has agreed to indemnify any of the Company Subsidiaries is lessee ofperson or entity with respect to, or holds or operatesto share, any property owned by liability of any person or entity; and (xii) any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any commitment which is material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract its Subsidiaries or agreement involving annual payments in excess of $500,000 that cannot that, if terminated, could reasonably be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect expected to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other thanhave, with respect to non-executive employees the passage of time or otherwise, a Material Adverse Effect. The contracts and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries agreements which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under identified in SCHEDULE 4.20 are each Material Contract, hereinafter referred to individually as a "CONTRACT" and to collectively as the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts"CONTRACTS."
Appears in 2 contracts
Samples: Stock Purchase Agreement (Meteor Industries Inc), Stock Purchase Agreement (Active Iq Technologies Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000250,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000250,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000250,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000250,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 250,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not or without more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents, except in the cases of (B) and (C) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 2 contracts
Samples: Investment Agreement (FNB United Corp.), Investment Agreement (FNB United Corp.)
Contracts. (a) The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) Made Available to the Investor or its representatives true, AcquisitionCo a correct and complete copies copy of each of the following written contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party (eachparty, a “Material Contract”):or by which the Company or any of its Subsidiaries is bound, that are in effect as of the date hereof:
(i) any contract (or agreement relating group of related contracts) involving the performance of services or the purchase of goods, materials or other assets by or to the Company or any of its Subsidiaries, the performance of which will involve (A) annual payments to or from the Company or any of its Subsidiaries of $50,000 or more, or (B) aggregate payments (including termination penalties) to or from the Company or any of its Subsidiaries of $100,000 or more;
(ii) any contract concerning a partnership or joint venture;
(iii) any contract (or group of related contracts) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, letters of creditor any capitalized lease obligation, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000100,000;
(iv) any contract concerning noncompetition that limits or otherwise restricts the Company or any of its Subsidiaries or that would, except after the Effective Time, limit or restrict Parent, AcquisitionCo, the Surviving Corporation or any of their respective Affiliates, from engaging or competing in any line of business or in any geographic area, including any contract containing any “radius clause” applicable to markets in which the Company or any of its Subsidiaries has operations;
(v) any contract relating to collective bargaining or employee association;
(vi) any contract for those issued the employment of any individual on a full-time, part-time, consulting, or other basis who is an officer or director of the Company or any of its Subsidiaries that provides for annual compensation in excess of $100,000;
(vii) any contract under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect;
(viii) any contract providing for the sale or exchange of, or option to sell or exchange, any material Company Property, or for the purchase or exchange of, or option to purchase or exchange, any real estate;
(ix) any contract for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or Equity Interests of another person for aggregate consideration in excess of $100,000, in each case other than in the ordinary course of business;
(iix) any contract or agreement that constitutes a collective bargaining license, royalty or other arrangement with contract concerning Intellectual Property (other than shrink-wrap software and databases licensed to the Company or any labor union;of its Subsidiaries under nonexclusive software licenses granted to end-user customers by third parties in the ordinary course of business of such third parties’ businesses), such Company Disclosure Letter indicating, in the case of any such license, whether the Company or any of its Subsidiaries is the licensee or licensor; and
(iiixi) each written amendment, supplement and modification in respect of any contract or agreement that is a “material contract” within of the meaning of Item 601(b)(10foregoing.
(b) Except as set forth in Section 4.14(b) of Regulation S-K;
(iv) any lease or agreement under the Company Disclosure Letter, with respect to each such contract to which the Company or any of the Company its Subsidiaries is lessee ofa party, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of its Subsidiaries is bound, of a type described in Section 4.14(a) and in effect as of the date hereof: (i) the contract is legal, valid, binding, and enforceable against the Company Subsidiaries is lessor ofand/or certain of its Subsidiaries, or permits any Person as applicable, and, to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any allianceknowledge, cooperationthe other party thereto, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable effect; (ii) except for any such contract that expires in accordance with its terms and (C) terms, the contract will continue to be legal, valid, bindingbinding and enforceable against the Surviving Corporation and/or certain of its Subsidiaries, enforceableas applicable, and, to the Company’s knowledge, the other party thereto, and in full force and effect in all material respects on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither Effective Time; (iii) neither the Company nor any of the Company its Subsidiaries, nor to the Knowledge of the Companyas applicable, any other party thereto is in material violation breach or default under any Material Contract. No benefits under any Material Contract will be increaseddefault, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse the passage of time or giving of notice would constitute a material breach or default by the Company or any of its Subsidiaries, or permit termination, modification, termination or accelerationacceleration by the other party, under the Material Contractscontract; and (iv) to the Company’s knowledge, no other party to the contract is in material breach or default, and no event has occurred that with the passage of time or giving of notice would constitute a material breach or default by such other party, or permit termination or acceleration by the Company or its Subsidiary, under the contract.
Appears in 2 contracts
Samples: Merger Agreement (Sl Industries Inc), Merger Agreement (Handy & Harman Ltd.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to Part 3.10 of the Investor or its representatives true, Disclosure Schedule sets forth a complete and correct and complete copies list of each of the following contracts, agreements, leases, licenses and obligations related to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating Business to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries Shareholders is lessee ofa party or bound (the “Contracts”). The Contracts are valid, binding and enforceable in accordance with their respective terms, and are in full force and effect. There are no existing material defaults thereunder and no event of default has occurred which (whether with or holds without notice, lapse of time or operates, any property owned by any other Person with annual rent payments in excess of $500,000;both) would constitute a material default thereunder:
(va) any lease Contracts concerning confidentiality (other than typical confidentiality provisions contained in Contracts entered into in the ordinary course of business) or agreement under which the Company that purport to limit, curtail or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, restrict the ability of the Company or any of the Company Subsidiaries its future subsidiaries or Affiliates to engage conduct business in any geographic area or line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, restrict the Persons with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of whom the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of its future subsidiaries or Affiliates may do business;
(xivb) Contracts with any contract employee, consultant or other independent contractor (including contracts with or “leases” from any truck owner-operator), and any offer letters for employment with the Company outstanding, including but not limited to any Contracts providing for any commission based compensation, profit sharing, severance payments or benefits, relocation payments or benefits, bonuses, change in control payments or benefits, and the details of any such compensation agreement containing or arrangement;
(c) Contracts with any labor union or other representative of employees (xincluding any collective bargaining agreement);
(d) Contracts with any employee leasing or temporary staffing agencies for the engagement of any leased employees or independent contractors;
(e) Contracts with any present or former officer, director or stockholder of the Company, or any Affiliate of such officer, director or stockholder, including any agreement providing for the employment of, furnishing of services by, rental of assets from or to, or otherwise requiring payments to, any such officer, director, stockholder or Affiliate, in each case, other than (A) advances or reimbursements for travel and entertainment expenses, (B) employee confidentiality and non-competition disclosure agreements on the Company’s standard form, and (C) employee benefits generally available to employees.
(f) Contracts under which the Company has advanced or exclusive dealing obligations loaned any amount to any of its employees or other obligation Affiliates of the Company and which purports has not been repaid in full prior to limit or restrict in the date of this Purchase Agreement;
(g) Contracts granting any power of attorney with respect to the ability affairs of the Company or any Company Subsidiary otherwise conferring agency or other power or authority to solicit customers bind the Company;
(h) partnership or joint venture agreements;
(i) Contracts for the manner in whichacquisition, sale or the localities in which, all lease of material properties or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets (by merger, purchase or business; andsale of stock or assets or otherwise);
(xvj) Contracts with any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.Governmental Body;
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Heckmann CORP)
Contracts. The Company has Previously Disclosed (a) Section 4.14 of the Disclosure Schedule contains a list of the following written or provided oral contracts that are Acquired Contracts or to which an Acquired Subsidiary is party (by hard copy, electronic data room or otherwisethe “Material Contracts”) to (and each Material Contract is listed under a heading in such Section that corresponds with the Investor or its representatives true, correct and complete copies of each of applicable clause among the following to which the Company or any Company Subsidiary is a party (each, a “such Material Contract”Contract relates):
(i) any contract that involves the performance of services or agreement relating delivery of goods or materials by the Business that is reasonably expected to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees result in respect of any of revenue after the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) date hereof in excess of $500,000, except for those issued 100,000 in any twelve month period (other than open purchase orders made in the ordinary course Ordinary Course of businessBusiness);
(ii) contract that involves the performance of services for, or delivery of goods or materials to, the Business that is reasonably expected to result in expenditures after the date hereof in excess of $50,000 in any contract or agreement that constitutes a collective bargaining or twelve month period (other arrangement with any labor unionthan open sales orders made in the Ordinary Course of Business);
(iii) contract for the employment of Person by the Business on a full-time, part-time, consulting or other basis, including any such contract that (A) provides annual cash or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments compensation in excess of $500,000;
100,000, (vB) any lease or agreement under which provides for the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations cash or other obligation which purports to limit compensation or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of benefits upon the consummation of the transactions contemplated by this Agreement. , or (C) provides for any severance payments;
(iv) contract that restricts the ability of Seller or any of its Affiliates to engage in any business, including the Business, or compete with any Person with respect to the Business or any other business;
(v) lease of any tangible personal property to or from any other Person and used in the Business with aggregate annual rental payments exceeding $50,000 in the most recently completed calendar year;
(vi) contract to pay or receive any royalty or license fee or to license (either as licensor or licensee) any Intellectual Property (other than any non-exclusive license for the use of any commercially available off-the-shelf software which was entered into in the Ordinary Course of Business of Seller);
(vii) each mortgage agreement, deed of trust, security agreement, purchase money agreement, conditional sales contract, capital lease or other similar contract created or assumed by, or permitted to be created by written document made or accepted by, Seller or any Acquired Subsidiary or any sale-leaseback arrangement pertaining to any real property or to equipment included in the Acquired Assets;
(viii) each contract requiring Seller or any Acquired Subsidiary to reimburse any maker of a letter of credit or banker’s acceptance;
(ix) each partnership, joint venture or similar contract relating to the Business;
(x) each contract with any distributor or broker of any product or service offered by the Business; and
(xi) each contract containing any form of most-favored pricing provision in favor of any supplier or customer of the Business.
(b) Each Material Contract (A) is legal, a valid and binding on obligation of Seller or the Company and relevant Acquired Subsidiary, enforceable against Seller or the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable relevant Acquired Subsidiary in accordance with its terms except as such enforceability may be limited by (i) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and (Cii) will continue to be legal, valid, binding, enforceable, and applicable equitable principles (whether considered in full force and effect a proceeding at law or in all material respects following equity). Seller or the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto relevant Acquired Subsidiary is not in material violation or breach of or default under any Material Contract. No benefits under any Material Contract will be increasedTo Seller’s Knowledge, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge Contract are not in material violation or breach of the Company, no or default thereunder. No event has occurred that (with notice or lapse without the passage of time or giving of notice) would constitute a material breach or default of, or permit termination, modification, acceleration or accelerationcancellation of, such Material Contract or of any material right or liability thereunder. Neither Seller nor the relevant Acquired Subsidiary has waived any material right under such Material Contract. No party to such Material Contract has terminated, modified, accelerated or canceled such Material Contract or any material right or liability thereunder or communicated in writing such party’s desire or intent to do so. Seller or the relevant Acquired Subsidiary has provided to Buyer a true, correct and complete copy of each written Material ContractsContract or, to the extent a Material Contract is oral, an accurate description of the material terms thereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Qumu Corp), Asset Purchase Agreement
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each of the following to which Neither the Company or nor any Company Subsidiary is a party (each, a “Material Contract”):
to (i) any contract or agreement Contract relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien money or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
financial guaranty; (ii) any contract or agreement Contract that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect materially limits the ability of the Company or any Company Subsidiary to solicit customers compete in any business line or in any geographic area; (iii) any Contract material to the VAB Business or the manner Business that is terminable by the other party or parties upon a change in which, or the localities in which, all or any portion of the business control of the Company or any Company Subsidiary; (iv) any Contract that involves required future expenditures or guaranteed receipts by the Company Subsidiaries is or can be conducted, any Company Subsidiary of more than $1,000,000 in any one-year period; (v) any Contract with any Self-Regulatory Organization or any Contract for the clearing of securities transactions; (yvi) any Contract for the lease of real property; (vii) any material Contract with respect to any Intellectual Property or System; (viii) any Employment Agreement; (ix) any Contract material to the VAB Business or the Business not made in the ordinary course of business; (x) any Contract that by its terms limits the payment of dividends or other distributions by the Company or any Company Subsidiary; (xi) any joint venture or partnership agreement; (xii) any Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or business; and
(xvxiii) any material contract agency, broker, sale representative, marketing or agreement that would require similar Contract; and (xiv) any consent Contract with any director, officer or approval of a counterparty as a result Affiliate of the consummation Company or any Company Subsidiary (collectively, “Material Contracts”).
(b) True and correct copies of the transactions contemplated by this Agreement. each Material Contract have been made available to Buyer and VAB Acquisition Sub.
(c) Each Material Contract (A) is legal, a valid and binding on arrangement of the Company or a Company Subsidiary and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceableeffect, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge none of the Company, the Company Subsidiaries or, to the Company’s Knowledge, any other party thereto is in default or breach in any material violation or default respect under the terms of any such Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 2 contracts
Samples: Merger Agreement (Instinet Group Inc), Merger Agreement (Nasdaq Stock Market Inc)
Contracts. The Except as set forth in the Disclosure Letter, neither the Company nor any of its Subsidiaries has Previously Disclosed any current or provided (by hard copyfuture rights, electronic data room responsibilities, obligations or otherwise) to liabilities, in each case as of the Investor or its representatives truedate of this Agreement, correct and complete copies of each under any of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(a) any Contract relating to Intellectual Property that is material to the Company and its Subsidiaries, taken as a whole;
(b) any Contract that would be required to be filed or furnished by the Company pursuant to Item 19 and paragraph 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(c) any Contract involving payments by the Company or any of its Subsidiaries in excess of US$7 million in the aggregate under each such Contract;
(d) any Contract, including any distribution agreements, containing covenants directly or explicitly limiting in any material respect the freedom of the Company and its Subsidiaries as a whole to compete in any geographic area, industry or line of business or with any Person or to offer any of its products or services, or any material exclusivity agreement relating to Intellectual Property, business opportunity or any resources or assets of the Company or any of its Subsidiaries;
(e) any indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for the borrowing of money or pledging or granting a security interest in respect of an aggregate amount of US$5 million or more;
(f) share or stock redemption or purchase agreements or other agreements affecting or relating to the share capital of the Company or any of its Subsidiaries, including, without limitation, any agreement with any shareholder of the Company or any of its Subsidiaries which includes, without limitation, anti-dilution rights, voting arrangements or operating covenants;
(g) any royalty or dividend arrangement that involves the payment by the Company of more than US$4 million annually based on the revenues or profits of the Company or any of its Subsidiaries or based on the revenues or profits derived from any material contract;
(h) any material acquisition, merger, asset purchase or other similar agreement;
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement Contract under which the Company or any of the Company its Subsidiaries is lessee ofhas granted any Person any registration rights, or holds any right of first refusal, first offer or operates, first negotiation with respect to any property owned by Securities or securities of any other Person with annual rent payments in excess Subsidiaries of $500,000the Company;
(vj) any lease Contract relating to the formation, creation, operation, management or agreement under control of any partnership, joint venture, limited liability company or similar arrangement; or
(k) any Contract that contains a put, call or similar right pursuant to which the Company or any of the Company its Subsidiaries is lessor ofcould be required to purchase or sell, or permits any Person to hold or operateas applicable, any property owned or controlled by the Company or equity interests of any Person. Each of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries Material Contracts is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and effect, is enforceable in accordance with its terms terms, subject to the Bankruptcy and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction DocumentsEquity Exception. Neither the Company nor any of the Company Subsidiariesits Subsidiaries has violated or breached, nor or committed any default under, any Material Contract, and, to the Knowledge of the Company’s knowledge, no other Person has violated or breached, or committed any other party thereto is in material violation or default under any Material Contract, except for violations, breaches or defaults which would not, individually or in the aggregate, in each case, reasonably be expected to have a Material Adverse Effect. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of To the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company’s knowledge, no event has occurred occurred, and no circumstance or condition exists, that (with or without notice or lapse of time or both) would constitute reasonably be expected to: (A) result in a material violation or breach or of any of the provisions of any Material Contract, (B) give any Person the right to declare a default or permit terminationexercise any remedy under any Material Contract, modification(C) give any Person the right to accelerate the maturity or performance of any Material Contract or (D) give any Person the right to cancel, terminate or accelerationmodify any Material Contract, under the except, in each case, as would not reasonably be expected to have a Material ContractsAdverse Effect.
Appears in 2 contracts
Samples: Investment Agreement (Alibaba Group Holding LTD), Investment Agreement (Ali YK Investment Holding LTD)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) There have been made available to the Investor or its representatives Parent true, correct and complete copies of each all of the following contracts to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company its Subsidiaries is lessee of, a party or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries them is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any bound as of the Company Subsidiaries;
date of this Agreement (vi) any contract or agreement limiting, in any material respectcollectively, the ability "MATERIAL CONTRACTS"): (i) contracts with any director of the Company, material contracts (other than those terminable at will without penalty) with any current officer of the Company or any of its Subsidiaries and employment, severance or termination agreements with any executive officer of the Company or any of its Subsidiaries; (ii) contracts (A) for the sale (other than completed sales) of material assets of the Company or any of its Subsidiaries, other than contracts entered into in the ordinary course of business or (B) for the grant to any person of any preferential rights to purchase any of its assets; (iii) contracts which restrict the Company or any of its Subsidiaries to engage from competing in any line of business or to competewith any person in any geographical area, whether by restricting territoriesother than those the performance or breach of which could not, customers or otherwise, individually or in any the aggregate, be reasonably likely to have a Company Material Adverse Effect; and (iv) indentures, credit agreements, security agreements, mortgages, guarantees, promissory notes and other material respectcontracts relating to the borrowing of money, with any Person;
other than (viiA) any settlement, conciliation or similar agreement, of the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) foregoing with respect to indebtedness to any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost Person of less than $500,000);
5.0 million, (ixB) intercompany loans or guarantees between the 22 Company and any contract of its Subsidiaries or agreement that concerns between any such Subsidiaries or for the sale benefit of, or acquisition of any material portion of the Company’s business;
(x) any allianceguaranteeing or securing obligations of, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company and (C) security agreements covering personal property that are not individually or any in the aggregate material to the Company and its Subsidiaries, taken as a whole.
(b) Except as specified in Section 3.14 of the Company Subsidiaries other thanDisclosure Letter, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability all of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which Contracts are a party to such contract, (B) is in full force and effect and are the legal, valid and binding obligations of the Company and/or its Subsidiaries, enforceable against them in accordance with its terms their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of equity (C) will continue regardless of whether enforcement is sought in a proceeding at law or in equity), except where the failure of such Material Contracts to be in full force and effect or to be legal, valid, bindingbinding or enforceable against the Company and/or its Subsidiaries has not had and could not, enforceableindividually or in the aggregate, and reasonably be expected to have a Company Material Adverse Effect. Except as specified in full force and effect in all material respects following the consummation Section 3.14 of the transactions contemplated by the Transaction Documents. Neither Company Disclosure Letter, neither the Company nor any of the Company Subsidiariesits Subsidiaries is in breach or default in any material respect under any Material Contract nor, nor to the Knowledge of the Company, is any other party thereto is in material violation or default under any Material Contract. No benefits under to any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default thereunder in any material respect, except for such breaches or permit terminationdefaults that have not had and could not, modificationindividually or in the aggregate, or acceleration, under the reasonably be expected to have a Company Material ContractsAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Fingerhut Companies Inc), Merger Agreement (Federated Department Stores Inc /De/)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Part 3.10(a) of the Investor or its representatives true, correct Disclosure Schedule sets forth a true and complete copies list, as of each the Agreement Date, of all of the following Contracts to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):or by which any of them is bound:
(i) any contract Company Contract that is required by the rules and regulations of the SEC to be filed as an exhibit to the Company SEC Documents;
(ii) any Company Contract in connection with which or agreement relating pursuant to indebtedness which the Company or any Company Subsidiary is committed to spend, in the aggregate, more than $2,000,000 during the current fiscal year;
(iii) any Company Contract that generated more than $2,000,000 in revenues for borrowed moneythe Company or any Company Subsidiary in the fiscal year ended December 31, letters 2016;
(iv) any Company Contract concerning the license, covenant not to xxx, or other waiver or grant of credit, capital lease obligations, obligations secured by a Lien rights in Intellectual Property Rights (whether the Company or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingCompany Subsidiaries is the grantor or grantee of such rights), but in or the development or modification of any event excluding trade payablesIntellectual Property, securities transactions and brokerage agreements arising other than (A) licenses to COTS or nonexclusive to customers in the ordinary course of business, intercompany indebtedness (B) Contracts entered into with employees, contractors, consultants and immaterial leases for telephonesvendors in the ordinary course of business and under which the Company or any Company Subsidiary has not granted or received any material Intellectual Property Rights, copy machines, facsimile machines and other office equipment(C) in excess of $500,000, except for those issued non-disclosure and confidentiality agreements entered into in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company SubsidiariesContract evidencing Indebtedness;
(vi) any contract or agreement limiting, in Company Contract evidencing any material respect, the ability obligations of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, Subsidiary with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted respect to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract issuance, sale, repurchase or agreement that concerns the sale or acquisition redemption of any material portion equity securities of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xivii) any contract Lease;
(viii) any collective bargaining agreement or agreement involving other Company Contract with any labor union, labor organization, works council or group of employees;
(ix) any Company Employee Agreement or Company Contract for the employment or engagement of any Person on a full-time or part-time basis, including directors, employees (temporary and seasonal) and independent contractors, in each case, at annual payments compensation in excess of $500,000 that cannot be cancelled by 150,000; Table of Contents (x) any lease of personal property under which the Company or a any Company Subsidiary without penalty on not is the lessee and is obligated to make payments of $50,000 or more than 90 days’ noticeper annum;
(xi) any Company Contract relating to any resolution or settlement of any actual or threatened Legal Proceeding involving the Company or any Company Subsidiary that imposes material continuing obligations upon the Company or any Company Subsidiary;
(xii) any Company Contract relating to the acquisition or disposition of any business, properties or assets, for consideration in excess of $500,000 by the Company or any Company Subsidiary or, to the extent still in force, with respect to which the Company or any Company Subsidiary has material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingcontinuing obligations;
(xiii) any contract Company Contract creating or relating to any material partnership, joint venture, or joint development agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessinvolving material continuing obligations;
(xiv) any contract or agreement containing Company Contract that constitutes an Affiliate Transaction; and
(xv) any Company Contract that: (xA) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect limits the ability freedom of the Company or any Company Subsidiary to solicit customers engage in any line of business, acquire any entity or the manner compete with any Person or in which, any market or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, geographical area; or (yB) right contains a grant of first refusal exclusivity or right of first offer or similar right or that limits or purports to limit the ability of “most favored nation” terms by the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; andother Person.
(xvb) any material contract or agreement that would require any consent or approval of a counterparty Except as a result disclosed in Part 3.10(b) of the consummation Disclosure Schedule, all Contracts that are set forth in Part 3.10(a) of the transactions contemplated by this Agreement. Each Disclosure Schedule (each a “Material Contract (AContract”) is legal, are valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedeffect, and no vesting are enforceable in accordance with their respective terms, subject to: (i) Laws of any benefits under any Material Contract will be acceleratedgeneral application relating to bankruptcy, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company insolvency and the Company Subsidiariesrelief of debtors; and (ii) rules of Law governing specific performance, injunctive relief and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractsequitable remedies.
Appears in 1 contract
Samples: Merger Agreement (NCI, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Section 3.12 of the Investor or its representatives true, correct and complete copies of Seller Disclosure Schedules lists each of the following types of Contracts to which the Company or any Company Subsidiary the Bank is a party (each, a “Material Contract”):or by which any of their respective properties or assets is bound as of the date of this Agreement:
(i) any contract or agreement relating to indebtedness for borrowed money, letters lease of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessreal property;
(ii) any contract or agreement Contract that constitutes a collective bargaining or other arrangement with contains any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition noncompetition or exclusive dealing obligations agreements or “most favored nation” provision or other agreement or obligation which that purports to materially limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in whichBank or, or following the localities in whichconsummation of the Merger, all would limit the ability of Buyer or any portion of the its Affiliates to compete in any line of business of the Company or the Company Subsidiaries is with any Person or can in any geographic area other than as may be conducted, required by Law or (y) any Governmental Entity or which grants any right of first refusal or refusal, right of first offer or similar right or that limits or purports to limit the ability of the Company or the Bank or, following consummation of the Merger, Buyer or any of the Company Subsidiaries its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and;
(xviii) any material Contract for, with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other business combination, or asset acquisition or sale or acquisition or sale of equity securities not in the Ordinary Course of Business, or any Contract that relates to a merger, consolidation, reorganization, recapitalization or other business combination, or asset acquisition or sale or acquisition or sale of equity securities and which contains representations, covenants, indemnities or other obligations, including indemnification, “earn-out” or other contingent obligations, that are in effect as of date of this Agreement;
(iv) any Contract relating to the borrowing of money or the deferred purchase price of property or services by it or the guarantee by it of any such foregoing obligations of a third party, other than by customers of the business of Bank or other Bank loan parties, deposit liabilities and Federal Home Loan Bank borrowings and Contracts relating to endorsements for payment, guarantees and letters of credit made in the Ordinary Course of Business, including any sale and leaseback transactions, capitalized leases and other similar financing transactions;
(v) any Contract that involves expenditures or receipts of it in excess of $100,000 per year, other than pursuant to Loans originated or purchased by the Company or the Bank in the Ordinary Course of Business and the estimated cost of terminating such contract prior to its expiration date;
(vi) any Contract that provides for future payments or obligations of the Company or the Bank in excess of $100,000 in the aggregate and which by its terms does not terminate or is not terminable without penalty or payment upon notice of 180 days or less and the estimated cost of terminating such contract prior to its expiration date;
(vii) any employment agreement, severance agreement, retention agreement, change of control agreement, consulting agreement or similar agreement that would require is with any consent director or approval executive officer;
(viii) any Contract creating a joint venture, franchise, partnership, limited liability company agreement or similar arrangement, or relating to the operation, management or control of a counterparty any partnership, franchise or joint venture, in each case, with any third party;
(ix) any Contract which limits payments of dividends; or
(x) any Contract required to be listed on Section 3.17 of the Seller Disclosure Schedules. Each Contract of the type described in the foregoing clauses (i) through (x) is referred to in this Agreement as a result of the consummation of the transactions contemplated by this Agreement. “Material Contract.”
(i) Each Material Contract (A) Contact is legal, valid and binding on the Company or the Bank, as applicable, and to the Knowledge of the Company Subsidiaries which are a or the Bank, each other party to such contractMaterial Contract, (B) and is in full force and effect and enforceable in accordance with its terms terms, except to the extent that validity and (C) will continue enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors' rights generally or by general principles of equity or by principles of public policy and except where the failure to be legal, valid, binding, enforceable, enforceable and in full force and effect would not, individually or in all material respects following the consummation of the transactions contemplated aggregate, reasonably be expected to have a Material Adverse Effect; and
(ii) there is no default under any Material Contact by the Transaction Documents. Neither Company or the Company nor any of the Company SubsidiariesBank or, nor to the Knowledge of the CompanyCompany or the Bank, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedthereto, and no vesting event or condition has occurred that constitutes, or, after notice or lapse of any benefits under any Material Contract will be acceleratedtime or both, by is likely to constitute, a default on the occurrence of any part of the transactions contemplated by Company or the Transaction DocumentsBank or, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the CompanyCompany or the Bank, each any other party to such Material Contract under any such Material Contact, nor has the Company or the Bank received any written notice of the other parties theretoany such default, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modificationcondition, or accelerationof any termination or non-renewal of any Material Contact, under except where any such default, event or condition, or any such termination or non-renewal would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has made available to Buyer true and complete copies of all the Material Contacts, including any amendments to such Material Contracts.
(c) Each Material Contract between DMIC and DGI, on the one hand, and the Company and/or the Bank, on the other hand, can be terminated as of the Closing Date without penalty to any party to such contracts.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Section 3.14(a) of the following Company Disclosure Letter is a complete list of all written contracts, agreements, commitments, leases, sales contracts and other agreements to which the Company or any Company Subsidiary is a party as of the date of this Agreement (eachcollectively, a “Material ContractContracts”):
(i) which provide for the receipt or expenditure by the Company or any contract Company Subsidiary after the date of this Agreement, of more than $1,000,000 (or agreement relating to indebtedness for borrowed moneyits equivalent in non-cash consideration) per year (other than contracts, letters of creditagreements, capital lease obligationscommitments, obligations secured by a Lien or interest rate or currency hedging leases, sales contracts and other agreements (including guarantees in respect i) providing for acquisition or disposition of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising supplies or other inventory in the ordinary course of businessbusiness or (ii) that may be canceled without any penalty or other liability to the Company or any Company Subsidiary upon notice of 90 days or less (contracts described in clause (ii), intercompany indebtedness and immaterial leases for telephonesregardless of the amount of receipts or expenditures thereunder, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business“Excluded Contracts”));
(ii) which are for the acquisition or disposition of any contract interest in real estate (other than those under which neither the Company nor any Company Subsidiary has any continuing obligations or agreement that constitutes a collective bargaining or other arrangement with any labor unionrights);
(iii) which provide for the acquisition, issuance or transfer of any contract securities of the Company or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kany Company Subsidiary (other than as contemplated by this Agreement);
(iv) which create or represent Indebtedness or Liens (other than Permitted Liens (other than clause (ii) of the definition of Permitted Liens) on assets of the Company or any lease or agreement Company Subsidiary as security for Indebtedness);
(v) under which the Company or any of the Company Subsidiaries Subsidiary is lessee of, currently a franchisee or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesfranchisor;
(vi) which establish or govern the terms of any contract partnership or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personjoint venture agreement;
(vii) any settlement, conciliation or similar agreement, which expressly limits the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability freedom of the Company or any Company Subsidiary to solicit customers compete in any line of business with any Person or in any geographical area;
(viii) which is a material broker, distributor, dealer, manufacturer’s representative, agency, sales promotion, market research, marketing, consulting and advertising agreement (other than Excluded Contracts);
(ix) which provide for the manner in whichprovision of gaming, gambling or the localities in which, all arcade facilities or arcade services;
(x) which are material agreements with a credit card or debit card company;
(xi) which are employment agreements with any portion director or officer of the business Company or a Company Subsidiary or with any other employee of the Company or a Company Subsidiary; and
(xii) which are collective bargaining agreements, contracts or other agreements or understandings with a labor union or labor organization.
(b) Complete and correct copies of all Material Contracts as of the date hereof have been provided to Purchaser or its counsel. Each of the Material Contracts is a valid and binding obligation of the Company or the Company Subsidiaries is or can be conductedSubsidiary party thereto, or and to the Company’s knowledge, the other parties thereto.
(yc) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability Except as set forth in Section 3.14(c) of the Company or Disclosure Letter, neither the Company nor any Company Subsidiary is, nor to the knowledge of Sellers is any other party, in default under any material term of any Material Contract.
(d) Except as set forth in Section 3.14(d) of the Company Subsidiaries to ownDisclosure Letter, operate, sell, transfer, pledge or otherwise dispose all Indebtedness of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation prepayable without premium or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractspenalty.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copySet forth in Sections 2.13, electronic data room or otherwise) to the Investor or its representatives true2.14, correct 2.15 and complete copies of each 2.16 of the Company Disclosure Letter are the following contracts to which the Company or any Company Subsidiary of its subsidiaries is a party or by which any of them is bound (eachcollectively, a “together with all contracts referred to in Sections 2.16, 2.20(c), 2.25 and 2.28, the ("Company Material Contract”):
Contracts") (i) contracts between any contract current officer, director or agreement relating to indebtedness for borrowed money, letters stockholder of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of Affiliate thereof on the Company Subsidiaries is lessee ofone hand, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which and the Company or any of subsidiary thereof on the Company Subsidiaries is lessor of, or permits other hand; (ii) contracts under which any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability employee of the Company or any of its subsidiaries is entitled to receive annual payments (including salary and bonuses) in excess of $100,000; (iii) contracts that restrict the Company Subsidiaries to engage or any of its subsidiaries from competing in any line of business or to compete, whether by restricting territories, customers or otherwise, or with any person in any geographical area; (iv) contracts entitling any person to change in control or other material respectseverance payments; (v) indentures, with credit agreements, security agreements, mortgages, guarantees, promissory notes and other contracts relating to the borrowing of money, other than any Person;
such document or agreement between the Company and a subsidiary of the Company or among subsidiaries of the Company; (vi) contracts involving the sale or purchase of goods or service in excess of $500,000 in any year or $5,000,000 over the life of such Company Material Contract; (vii) any settlementjoint venture, conciliation partnership and similar agreements; (viii) contracts with respect to capital expenditures or similar agreement, the performance of which will involve payment after the Closing Date of consideration commitments for such expenditures in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
; (ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual contracts providing for payments in excess of $500,000 that cannot be cancelled by from the United States Government or any prime contractor of the United States Government over the life of such Company Material Contract; and (x) all other agreements, contracts or instruments entered into outside of the ordinary course of business or which are material to the Company and its subsidiaries taken as a whole. The Company has delivered or made available to Purchaser true and correct copies of all such Company Material Contracts. All such Company Material Contracts are the legal, valid and binding obligations of the Company and/or its subsidiaries enforceable against the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgesuch subsidiary, collarand, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service knowledge of any current or former directorsthe Company, officersagainst the other parties to the Company Material Contracts, employees or consultants of in accordance with their respective terms, subject, in each case, to the Enforceability Exceptions. Neither the Company or any of the Company Subsidiaries other thanits subsidiaries nor, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge knowledge of the Company, any other party thereto thereto, is in material violation of or in material default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsin respect of, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiarieshas there occurred an event or condition, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse the passage of time or giving of notice (or both), would constitute a material breach or default under or permit terminationthe termination of, modification, or acceleration, under the any such Company Material ContractsContract.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Schedule 3.11(a) of the Investor or its representatives Due Diligence Memorandum sets forth a true, correct and complete copies of each list of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries or any of their respective assets is a party bound (eachcollectively, a the “Material ContractContracts”):
(i) any contract bond, debenture, note, loan, Securitization, credit or loan agreement or loan commitment, mortgage, indenture, guarantee or other Contract relating to indebtedness the borrowing of money by the Company;
(ii) any lease relating to the Leased Real Property or other lease or license involving any properties or assets (whether real, personal or mixed, tangible or intangible), including any purchase and sale or similar agreements, in which the Company is the lessee and in which the aggregate amount owed under the lease exceeds $150,000;
(iii) any Contract which limits or restricts the Company or any of its Subsidiaries or any of their officers or key employees, from engaging in any business in any jurisdiction or competing with any Person;
(iv) any material franchising and licensing agreements;
(v) any material agreement related to any Securitization or Revolving Facility;
(vi) any employment, consulting agreements or independent contractor agreements with annual compensation (including bonus payments) due to such employee, consultant or independent contractor in excess of $150,000;
(vii) any Contract (other than Financing Contracts), obligation or commitment that involves a potential commitment, including, without limitation, all open purchase orders, in excess of $50,000;
(viii) any material Contract to which the Insurance Subsidiary is a party;
(ix) the Sub-Servicing Agreement and any Servicing Agreement;
(x) any Contract that restricts the origination or servicing of leases by the Company or any of its Subsidiaries;
(xi) any Contract with the Top Vendors or any other contract with the Company’s vendors or dealers that are material to the Company’s business;
(xii) any Contract for borrowed moneyan individual capital expenditure or acquisition or construction of a fixed asset by the Company or any of its Subsidiaries in excess of $100,000;
(xiii) any Contract that provides for an increased payment or benefit, letters or accelerated vesting or payment, upon the execution of credit, capital lease obligations, obligations secured by this Agreement or in connection with the transactions contemplated hereby;
(xiv) any Contract granting any Person a Lien on all or interest rate or currency hedging agreements (including guarantees in respect any part of any of the foregoingassets of the Company or any of its Subsidiaries (other than pursuant to any Securitization or Revolving Facility);
(xv) any Contract for the cleanup, but abatement or other actions in connection with any event excluding trade payablesHazardous Materials, securities transactions and brokerage agreements arising in the ordinary course remediation of businessany existing environmental condition or relating to the performance of any environmental audit or study;
(xvi) any Contract granting to any Person an option or a first refusal, intercompany indebtedness and immaterial leases first-offer or similar preferential right to purchase or acquire any assets other than pursuant to a Financing Contract;
(xvii) any material Contract related to the Company’s or any of its Subsidiaries’ information technology systems;
(xviii) any material Contract for telephonesthe granting or receiving of a license or sublicense or under which any Person is obligated to pay or have the right to receive a royalty, copy machineslicense fee or similar payment;
(xix) any material Contract (other than Financing Contracts) providing for the indemnification or holding harmless of any officer, facsimile machines and manager, employee or other office equipmentPerson;
(xx) in excess any Contract that governs any joint venture, partnership or similar arrangement involving a sharing of $500,000profits or otherwise;
(xxi) any Contract that includes a “most favored nations” or “exclusivity” provision;
(xxii) any material warranty, except for those issued guaranty or similar undertaking with respect to contractual performance extended by the Company or any of its Subsidiaries, other than in the ordinary course of business;
(iixxiii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning outstanding power of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits attorney empowering any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability act on behalf of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;its Subsidiaries; or
(viixxiv) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates commitment to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or do any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company foregoing or any Company Subsidiary to solicit customers material amendment, modification or the manner supplement in which, or the localities in which, all or any portion respect of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to ownforegoing. True, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result correct and complete copies of the consummation Contracts required to be set forth on Schedule 3.11(a) of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on Due Diligence Memorandum have been furnished to the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction DocumentsPurchasers. Neither the Company nor any of its Subsidiaries is party to or bound by any Contract that is material to its business, operations or assets other than those Contracts set forth on Schedule 3.11(a) of the Due Diligence Memorandum.
(b) The Material Contracts (and the leases the Company or its Subsidiaries have entered into) are legal, valid, binding and enforceable in accordance with their respective terms with respect to the Company or its Subsidiaries, nor as applicable, and with respect to each other party to such Material Contracts, except as may be limited by any bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Law affecting creditors’ rights and remedies generally. There are no existing material defaults or material breaches by the Company or any of its Subsidiaries, as applicable, under any Material Contract (or events or conditions which, with notice or lapse of time or both would constitute a default or breach) (and the leases the Company or its Subsidiaries have entered into) and, to the Knowledge of the Company, there are no such material defaults (or events or conditions which, with notice or lapse of time or both, would constitute a default or breach) with respect to any other third party thereto is in material violation or default under any Material Contract. No benefits under to any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by (nor the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and leases the Company or its Subsidiaries have entered into which would be material to the Company or its Subsidiaries, and to ). To the Knowledge of the Company, each there are no pending or threatened bankruptcy, insolvency or similar proceedings with respect to any party to such Material Contracts (nor the leases the Company or its Subsidiaries have entered into which would be material to the Company or its Subsidiaries). There are no discussions or negotiations regarding modification of or amendment to any Material Contract or entry into any new Material Contract applicable to the business. Schedule 3.11(b) of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under Due Diligence Memorandum identifies each Material Contract, and Contract set forth therein that requires the consent of or notice to the Knowledge of the Companyother party thereto to avoid any breach, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under violation of such Material Contract in connection with the Material Contractstransactions contemplated hereby.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each of Schedule 3.16 lists the following contracts, agreements and commitments, whether written or binding oral, to which the Company or any Company Subsidiary Seller is a party or is otherwise bound or has rights or receives benefits under (eachincluding the title, a “Material Contract”):date and name of the parties to each such contract, agreement or commitment) and that relate to the Business, other than Employee Benefit Plans:
(i) any contract agreement (or agreement relating group of related agreements) for the lease of equipment or other personal property to indebtedness or from any Person providing for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) payments in excess of $500,000, except for those issued in the ordinary course of business25,000.00 per annum;
(ii) any contract agreement (or agreement that constitutes a collective bargaining group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, equipment or other arrangement with any labor unionpersonal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year, result in a loss to Seller, provide for discounts or allowances, or involve consideration in excess of $100,000.00;
(iii) any contract agreement concerning a partnership or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kjoint venture;
(iv) any lease agreement (or agreement group of related agreements) under which the Company Seller has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any of the Company Subsidiaries is lessee ofcapitalized lease obligation, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000100,000.00 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any lease agreement (excluding Leases) that contains any covenant that purports to restrict the business activity of Seller or agreement under which limits the Company or any freedom of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries Seller to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
(vi) any agreement with any officer, director, shareholder or employee of Seller or any Affiliate of such Persons;
(vii) any settlement, conciliation sales representative or similar agency agreement, brokers agreement or dealer agreement or other agreement relating to the performance sale or distribution of products or services of the Business to or by other Persons which will involve payment after the Closing Date of involves consideration in excess of $500,000100,000.00;
(viii) any contract or agreement that relates provides any customer of Seller with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost customers of less than $500,000)Seller, including any agreement containing “most favored nation” provisions;
(ix) any contract agreement under which Seller has advanced or agreement that concerns loaned any Person amounts in the sale or acquisition of any material portion of the Company’s business;aggregate exceeding $100,000.00; or
(x) any allianceequity purchase agreement, cooperationasset purchase agreement, joint venture, shareholders, partnership merger agreement or similar other acquisition or divestiture agreement involving to which Seller is a sharing of profits party or losses relating to is otherwise bound and entered into by Seller during the Company or any Company Subsidiary;past five (5) years; and
(xi) any contract other agreement (or agreement involving annual payments group of related agreements), excluding Leases, the performance of which involves consideration in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;50,000.00.
(xiib) any material hedge, collar, option, forward purchasing, swap, derivative or similar Seller has delivered to Buyer a true and complete copy of each written agreement (as amended to date) listed in Schedule 3.16 and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 3.16. With respect to each such agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of extent such agreement is an Assumed Contract: (i) the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid valid, binding, enforceable, and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and enforceable subject, as to enforceability, to the effect of general principles of equity (regardless of whether such enforceability is considered in accordance with a proceeding at law or in equity); (ii) Seller has fulfilled when due, or taken all action necessary to enable it to fulfill when due, all of its terms and obligations under the agreement; (Ciii) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto hereby; and (iv) Seller is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesnot, and to the Knowledge of the CompanySeller’s knowledge no Person is in breach or default, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contractor has alleged a breach or default, and to the Knowledge of the Company, Seller’s knowledge no event has occurred that which with notice or lapse of time would constitute a material breach or default default, or permit termination, modification, or acceleration, under the Material Contractsagreement.
Appears in 1 contract
Contracts. The (a) Section 3.16 of the Company has Previously Disclosed or provided (by hard copyDisclosure Letter lists, electronic data room or otherwise) to as of the Investor or its representatives truedate hereof, correct and complete copies of each of the following types of Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):or by which any of their respective properties or assets is bound:
(i) any contract or agreement relating Contract that would be required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured be filed by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is Company as a “material contract” within the meaning of pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;
(ivii) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, Contract that limits in any material respect, respect the ability of the Company or any of its Subsidiaries (or, following the Company Subsidiaries consummation of the Merger and the other transactions contemplated by this Agreement, would so limit the ability of Parent or any of its Subsidiaries, including the Surviving Corporation) to engage compete in any line of business or to compete, whether by restricting territories, customers or otherwise, with any Person or in any other material respect, with any Persongeographic area;
(viiiii) any settlementContract with respect to the formation, conciliation creation, operation, management or similar agreementcontrol of a Company Joint Venture;
(iv) 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 $5,000,000 or more (other than acquisitions or dispositions of inventory in the performance ordinary course of which will involve payment business consistent with past practice), with material obligations remaining to be performed or material liabilities continuing after the Closing Date date of consideration this Agreement;
(v) any Contract (A) evidencing Indebtedness for borrowed money in excess of $500,000;
3,000,000, (viiiB) granting a Lien on any contract property or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost asset of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or its Subsidiaries other than Permitted Liens, (C) restricting in any material respect the granting of Liens on any property or asset of the Company Subsidiary;
(xi) or its Subsidiaries, or the incurrence or guaranteeing of any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled Indebtedness by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
its Subsidiaries, (xiiD) providing for or relating to any material hedgeinterest, collarcurrency or hedging, option, forward purchasing, swap, derivative derivatives or similar agreement, understanding contracts or undertaking;
arrangements or (xiiiE) restricting payment of dividends or any contract or agreement with distributions in respect to of the employment or service of any current or former directors, officers, employees or consultants equity interests of the Company or any of its Subsidiaries; or
(vi) any Contract that (A) obligates the Company or any of its Subsidiaries other thanto make any capital commitment, loan or expenditure in an amount in excess of $3,000,000 individually or $10,000,000 in the aggregate under such Contract (determined solely with respect to remaining periods under such Contract during which such Contract cannot be terminated without penalty or cost), or (B) imposes any material non-executive employees and consultants, in financial obligations on the ordinary course of business;
(xiv) any contract Company or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports its Subsidiaries with respect to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers dispose of any assets; provided, that (1) Company Plans and (2) any Contract between the Company, on the one hand, and one or more wholly-owned Subsidiaries of the manner in whichCompany, on the other hand, or the localities in which, all between one or any portion more wholly-owned Subsidiaries of the business Company, shall not be required to be listed in Section 3.16 of the Company Disclosure Letter, shall not be required to be made available to Parent pursuant to Section 3.16(b) and shall not be deemed a “Material Contract” for any purposes hereunder (whether or not filed pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability on a Current Report on Form 8-K). Each contract of the Company type described in clauses (i) through (vi) is referred to herein as a “Material Contract.”
(b) Except as would not and would not reasonably be expected to, individually or any in the aggregate, have a Material Adverse Effect, as of the Company Subsidiaries to owndate hereof, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xvi) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each each Material Contract (A) is legal, valid and binding on the Company and any of its Subsidiaries to the Company Subsidiaries which are extent such Subsidiary is a party thereto, as applicable, and to such contractthe knowledge of the Company, (B) each other party thereto, and is in full force and effect and enforceable in accordance with its terms terms; (ii) the Company and each of its Subsidiaries, and, to the knowledge of the Company, each other party thereto, has performed all obligations required to be performed by it under each Material Contract; and (Ciii) will continue there is no default under any Material Contract by the Company or any of its Subsidiaries or, to be legalthe knowledge of the Company, valid, binding, enforceableany other party thereto, and in full force and effect in all material respects following no event or condition has occurred that constitutes, or, after notice or lapse of time or both, would constitute, a default on the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any part of the Company Subsidiariesor any of its Subsidiaries or, nor to the Knowledge knowledge of the Company, any other party thereto is in material violation or default under any such Material Contract. No benefits under , nor has the Company or any Material Contract will be increased, and no vesting of its Subsidiaries received any written notice of any benefits under any Material Contract will be acceleratedsuch default, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documentsevent or condition. The Company has made available to Parent true and the Company Subsidiaries, and to the Knowledge complete copies of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts, including all amendments thereto.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct Schedule 3.9 provides a true and complete copies of each list of the following contracts to which the Company or any Company Subsidiary is a party (eachcollectively, a the “Material ContractContracts”):
(i) Real Property Leases, Personal Property Leases, Contracts related to insurance, Contracts affecting any contract Company Intellectual Property or agreement relating to indebtedness for borrowed moneythe Company’s information systems or software, letters of creditContracts with independent contractors, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions Company Benefit Plans and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessGovernmental Approvals;
(ii) any contract Any Contract for capital expenditures or agreement that constitutes a collective bargaining for the purchase of goods or other arrangement with any labor unionservices in excess of $10,000;
(iii) Any Contract obligating the Company to sell or deliver any contract product or agreement that is service at a “material contract” within price which does not cover the meaning of Item 601(b)(10cost (including labor, materials and production overhead) of Regulation S-Kplus the customary profit margin associated with such product or service;
(iv) any lease Any Contract involving financing or agreement under which the Company or any borrowing of the Company Subsidiaries is lessee ofmoney, or holds or operatesevidencing indebtedness, any liability for borrowed money, any obligation for the deferred purchase price of property owned by any other Person with annual rent payments in excess of $500,0005,000 (excluding normal trade payables) or guaranteeing in any way any Contract in connection with any Person;
(v) any lease or agreement under which the Company Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesprofits;
(vi) Any Contract with any contract Governmental Authority;
(vii) Any Contract relating to any license or agreement limitingroyalty arrangement;
(viii) Any power of attorney, proxy or similar instrument;
(ix) Any Contract to indemnify any Person or to share in or contribute to the liability of any material respect, the ability of the Company or any of the Company Subsidiaries Person;
(x) Any Contract containing covenants not to engage compete in any line of business or to compete, whether by restricting territories, customers with any Person in any geographical area or otherwisethat would otherwise result in Purchaser being bound by, or in subject to, any non-compete or other material respectrestriction on the operation or scope of its businesses, with any Person;
(vii) any settlement, conciliation or similar agreement, including the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company SubsidiaryBusiness;
(xi) Any Contract related to the acquisition of a business or the equity of any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeother Entity;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative Any Contract within or similar agreement, understanding or undertakingneeded in the ordinary course of the Company’s operation of the Business;
(xiii) any contract or agreement Any warranty Contract with respect to the employment or service of any current or former directors, officers, employees or consultants of services rendered by the Company or any of products sold or leased by the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;Company; and
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict Any proposed arrangement of a type that, if entered into, would be a Contract described in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (yi) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; andthrough (xiii) above.
(xvb) any material contract or agreement that would require any consent or approval True and complete copies of a counterparty as a result each written Material Contract and true and complete written summaries of each oral Material Contract (including all amendments, supplements, modifications and waivers thereof) have been delivered to Purchaser by the consummation of the transactions contemplated by this Agreement. Company.
(c) Each Material Contract (A) is legal, currently valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following effect, and, to the consummation of the transactions contemplated Company’s Knowledge, is enforceable by the Transaction Documents. Neither Company in accordance with its terms.
(d) The Company is not in default, and no party has notified the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto that it is in material violation or default default, under any Material Contract. No benefits under any Material Contract will be increasedevent has occurred, and no vesting circumstance or condition exists, that might, with or without notice or the lapse of any benefits under any Material Contract will be accelerated, by the occurrence time or both: (i) result in a violation or breach of any of the transactions contemplated by the Transaction Documents, nor will the value provisions of any of Material Contract; (ii) give any Person the benefits right to declare a default or exercise any remedy under any Material Contract be calculated on Contract; or (iii) give any Person the basis right to accelerate the maturity or performance of any of the transactions contemplated by the Transaction Documents. The Company and the Company SubsidiariesMaterial Contract or to cancel, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each terminate or modify any Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 1 contract
Samples: Merger Agreement (Shutterfly Inc)
Contracts. The (A) Except for Contracts that are filed as an exhibit to a Filed Company has Previously Disclosed or provided (by hard copySEC Document, electronic data room or otherwiseSection 4.1(h) to of the Investor or its representatives trueCompany Disclosure Schedule contains a complete and correct list, correct and complete copies as of the date of this Agreement, of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(iContract described below in this Section 4.1(h)(A) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of its Subsidiaries has any current or future rights, responsibilities, obligations or liabilities (in each case, whether contingent or otherwise) or to which any of their respective properties or assets is subject, in each case as of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess date of $500,000;this Agreement:
(vi) any lease or agreement under each material Contract to which the Company or any of the Company its Subsidiaries is lessor of, a party that grants any right of first refusal or permits first offer to any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, restricts the ability of the Company or any of the Company its Subsidiaries to (A) compete with any Person in any area, (B) engage in any line of activity or business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, connection with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (yC) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or businessbusinesses;
(ii) each joint venture, manufacturing, strategic alliance or partnership agreement or similar arrangement;
(iii) each Contract between the Company or any of its Subsidiaries, on the one hand, and any officer, director or Affiliate of the Company or any of its Subsidiaries, on the other hand, including any Contract pursuant to which the Company or any of its Subsidiaries has an obligation to indemnify such officer, director or Affiliate;
(iv) that involves or relates to (A) indebtedness for borrowed money or the deferred purchase price of goods or services and having an outstanding principal amount in excess of $10,000,000 or (B) any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract;
(v) with respect to any acquisition or disposition of any Person or business or material portion thereof pursuant to which the Company or any of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case that could result in payments in excess of $10,000,000; and
(xvvi) any material contract other Contract which would prohibit or agreement that would require any consent or approval of a counterparty as a result of materially delay the consummation of the transactions Offer or the Merger or any other transaction contemplated by this Agreement. .
(B) Each Material Contract (A) is legal, valid and binding on of the Company and or any of its Subsidiaries that is required to be set forth on Section 4.1(h) of the Company Subsidiaries which are Disclosure Schedule or required to be filed as an exhibit to the Filed Company SEC Documents (a party to such contract, (B“Material Contract”) is in full force and effect and enforceable (except for those Contracts that have expired or have been terminated in accordance with its terms their terms) and (C) will continue to be is a legal, valid, binding, enforceable, valid and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any binding agreement of the Company Subsidiariesor its Subsidiary, nor as the case may be, and, to the Knowledge of the Company, any of each other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedthereto, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and enforceable against the Company Subsidiariesor such Subsidiary, and as the case may be, and, to the Knowledge of the Company, each other party thereto, in each case, in accordance with its terms, except for such failures to be in full force and effect or to be legal, valid, binding or enforceable that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Each of the other parties thereto, have Company and its Subsidiaries has performed in or is performing all material respects all material obligations required to be performed by them it under each the Material ContractContracts and is not in breach or default thereunder, and has not waived or failed to enforce any rights or benefits thereunder, and, to the Knowledge of the Company, no event has occurred that with notice or lapse other party to any of time would constitute a material the Material Contracts is in breach or default or permit thereunder, and there has occurred no event giving to others any right of termination, modificationamendment or cancellation of any Material Contract or any license thereunder, except for, in each case, any such failures to perform, breaches, defaults, waivers, failures to enforce or accelerationevents that, under individually or in the aggregate, have not had and would not reasonably be expected to have a Material ContractsAdverse Effect.
Appears in 1 contract
Contracts. The (a) SECTION 3.08(a) of the Disclosure Schedule contains a complete and accurate list, and the Company has Previously Disclosed delivered or provided (by hard copy, electronic data room or otherwise) made available to the Investor or its representatives true, correct Veeco true and complete copies of each copies, of the following Contracts to which the Company or any Company Subsidiary Target Corporation is a party (each, a “Material Contract”"MATERIAL CONTRACT"):
(i) each Contract that is executory in whole or in part and involves (x) delivery of goods or materials the remaining unpaid balance of which is in excess of $75,000 or (y) performance of services by any contract Target Corporation the remaining unpaid balance of which is in excess of $50,000, other than in each case (x) and (y) such Contracts that are cancellable by the applicable Target Corporation, without penalty, upon 60 days or agreement relating shorter notice; PROVIDED, HOWEVER, that, with respect to indebtedness for borrowed moneyany Contract with a cancellation period defined by specific dates, letters no part of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect the cancellation period of any such cancellable Contract shall have commenced as of the foregoing, but date of this Merger Agreement;
(ii) each Contract that is executory in any event excluding trade payables, securities transactions whole or in part and brokerage agreements arising was not entered into in the ordinary course of business, intercompany indebtedness business and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) that involves future expenditures or receipts of any Target Corporation in excess of $500,00050,000;
(iii) each lease, rental or occupancy agreement, license agreement, installment and conditional sale agreement, and any other similar Contract, in each case, affecting the ownership of, leasing of, title to, use of, or any leasehold or other similar interest in, any real or personal property (except for those issued any personal property lease and installment or conditional sale agreement having a value per item or annual payments of less than $50,000);
(iv) other than licensing agreements entered into in connection with product sales or purchases in the ordinary course of the Company's or any other Target Corporation's business, each material licensing agreement or any other material Contract with respect to the ownership or use of patents, trademarks, copyrights or other Intellectual Property, including material Contracts with current or former employees, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property;
(v) each collective bargaining agreement and any other Contract to or with any labor union or other similar employee representative of a group of employees of any Target Corporation;
(vi) each joint venture or partnership agreement and any other similar material Contract (however named) involving a sharing of profits or losses by a Target Corporation with any other Person;
(vii) each Contract containing covenants that in any material way purport to restrict the business activity of a Target Corporation or limit the freedom of a Target Corporation to engage in any line of business or to compete with any Person;
(viii) each Contract providing for payments in the aggregate in excess of $50,000 to or by any Target Corporation based on sales, purchases or profits, or, in the case of Contracts providing for payments to or by any Target Corporation based on a percentage of sales, purchases or profits, which would be reasonably likely to result in payments in the aggregate in excess of $50,000, other than payments for goods or services and other than distribution agreements or sales commission plans;
(ix) each Contract during the last two years providing for the distribution of products that have not yet been delivered having an aggregate value in excess of $250,000 by or for any Target Corporation;
(x) each power of attorney that is currently effective and outstanding granted by any Target Corporation other than to customs agents and auditors;
(xi) each Contract that is executory in whole or in part and requires capital expenditures after the date hereof in excess of $100,000 by any Target Corporation;
(xii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance valued in excess of $100,000 extended by any Target Corporation, other than in the ordinary course of business;
(iixiii) any contract or agreement that constitutes a collective bargaining or each Contract (other arrangement than Benefit Plans) with any labor union;
(iii) current or former employee, director or officer of any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee ofTarget Corporation, or holds pursuant to which any Target Corporation has or operates, would reasonably be expected to have liability to any property owned by any other Person with annual rent payments current or former employee in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;100,000; and
(xiv) each amendment, supplement or modification (whether oral or written) in respect of any contract of the foregoing Contracts; PROVIDED, HOWEVER, that no Contract or agreement containing referred to in clauses (i) through (xv) need be disclosed unless the applicable Target Corporation currently has, or in the future may have, any rights or obligations thereunder. There are no legally enforceable oral agreements to which any Target Corporation is a party which, if in writing, would be required to be disclosed pursuant to this Section 3.08(a).
(xb) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict Except as set forth in any respect the ability SECTION 3.08(b) of the Disclosure Schedule, each Material Contract is enforceable against the applicable Target Corporation and, to the Company's and the Company Stockholders' Knowledge, against the other party thereto in accordance with its terms (subject to bankruptcy, insolvency and other proceedings at law or in equity relating to the rights of creditors generally and by general equitable principles, including, without limitation, those limiting the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses).
(c) Except as set forth in SECTION 3.08(c) of the Disclosure Schedule, no Target Corporation has received any written notice of default under any Material Contract, no material default (beyond any applicable grace or cure period) has occurred under any Material Contract on the part of a Target Corporation or, to the Company's and the Company Subsidiary to solicit customers Stockholders' Knowledge, on the part of any other party thereto, nor has any event occurred which with the giving of notice or the manner in whichlapse of time, or both, would constitute any material default on the localities part of a Target Corporation under any Material Contract nor, to the Company's and the Company Stockholders' Knowledge, has any event occurred which with the giving of notice or lapse of time, or both, would constitute any default on the part of any other party to any Material Contract.
(d) Except as set forth in which, all or any portion SECTION 3.08(d) of the business of Disclosure Schedule, to the Company's and the Company Stockholders' Knowledge, no officer or the Company Subsidiaries employee of any Target Corporation is or can be conducted, or (y) right of first refusal or right of first offer or similar right or bound by any Contract that limits or purports to limit the ability of such officer or employee to (i) engage in or continue any conduct, activity or practice relating to the Company or any businesses of the Company Subsidiaries to ownTarget Corporations as currently conducted, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xvii) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party assign to such contractTarget Corporation any rights to any invention, (B) is in full force improvement or discovery made by such officer or employee during the course of his or her employment with such Target Corporation and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor relating to the Knowledge business of such Target Corporation or made, written, developed or conceived with the Company, any other party thereto is in material violation use or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting assistance of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice such Target Corporation's facilities or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractsresources.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) The Xxxxxx Disclosure Letter sets out a list of all Contracts that are material to the business, operations, results of operations, or financial condition of Xxxxxx and its subsidiaries considered as a whole (the "MATERIAL CONTRACTS"), comprising the following types of material Contracts, agreements or understandings:
(A) any contract Contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements money (including guarantees in respect any guarantee of or obligation to guarantee the indebtedness for borrowed money of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and Person other office equipmentthan a subsidiary) having an outstanding principal amount in excess of $500,000, except and, for those issued in each such Contract or agreement, the ordinary course aggregate principal amount outstanding as of businessthe date of this Agreement;
(iiB) any contract Contract or agreement that constitutes relating to a collective bargaining Lien imposed on any material asset or other arrangement with any labor unionproperty of Xxxxxx or a subsidiary;
(iiiC) any contract currency exchange, interest rate exchange, commodity exchange or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Ksimilar Contract or agreement;
(ivD) any lease Contract or agreement under which with any supplier, distributor or customer for the Company furnishing of services or purchase or sale of goods, equipment, inventory or other assets to or by Xxxxxx or any subsidiary requiring payment of or receipt over the remaining life of such Contract or agreement of more than $1,000,000;
(E) any manufacturing Contract or original equipment manufacturing Contract or agreement requiring payment of or receipt over the remaining life of such Contract or agreement of more than $1,000,000;
(F) any Intellectual Property Contract or licence, excluding standard, off-the-shelf computer software licences;
(G) any Contract or agreement in connection with acquisitions, dispositions or the purchase or sale of shares or assets (other than in the Ordinary Course of Business) completed within three years of the date of this Agreement, including any Contract or other agreement entered into in connection with such purchase or sale Contract with continuing rights flowing to, or continuing obligations of, Xxxxxx or any of the Company Subsidiaries is lessee of, its subsidiaries (including ongoing payments or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000royalties and ongoing indemnification obligations);
(ixH) any contract partnership, joint venture or similar agreement that concerns the sale or acquisition of any material portion of the Company’s businessarrangement;
(xI) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract Contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company Xxxxxx or any subsidiary to compete with any Person or in any line of business or in any geographic area or during any period of time;
(J) any Contract or agreement (other than dealer, reseller or distributor agreements) that creates or imposes any exclusivity right or obligation with respect to Xxxxxx or any of its subsidiaries or the Company Subsidiaries other party to own, operate, sell, transfer, pledge such Contract or otherwise dispose of any material assets or businessagreement; and
(xvK) any other Contract to which Xxxxxx or any subsidiary is a party which is material contract or agreement that would require any consent or approval of a counterparty to Xxxxxx and its subsidiaries taken as a result whole.
(ii) None of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legalXxxxxx, valid and binding on the Company and the Company Subsidiaries which are a party to such contractits subsidiaries nor, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge knowledge of the CompanyXxxxxx, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, is in default or breach of, in any material respect, nor have performed Xxxxxx or its subsidiaries received any notice of default or breach in all any material respects all material obligations required to be performed by them under each respect of, or termination under, any Material Contract, and and, to the Knowledge knowledge of the CompanyXxxxxx, there exists no event has occurred that with state of facts which after notice or lapse of time or both would constitute a material breach or default or permit terminationbreach of such Material Contract, modificationexcept as would not, individually or in the aggregate, have a Material Adverse Effect on Xxxxxx.
(iii) Except as set forth in the Xxxxxx Disclosure Letter, no Material Contract (a) would be violated, contravened or breached by, or accelerationunder which a default would occur; (b) requires any consent or prior approval be obtained from any Person (including consents relating to the change of control of Xxxxxx); or (c) would terminate; in each case, under upon the Material Contractsexecution of this Agreement or the completion of the transactions provided for herein.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Schedule 3.17(a) (with paragraph references corresponding to the Investor or its representatives true, correct those set forth below) contains a true and complete copies list of each 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 execution of this Agreement), to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):or by which any of their respective Assets and Properties is bound:
(i) any contract all Contracts (excluding Benefit Plans) providing for a commitment of employment or agreement relating consultation services for a specified or unspecified term, the name, position and rate of compensation of each Person party to indebtedness for borrowed money, letters such a Contract and the expiration date of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;each such Contract.
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement all Contracts with any labor unionPerson containing any provision or covenant prohibiting or limiting the ability of the Company 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;
(iii) any contract all partnership, joint venture, shareholders’ or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, similar Contracts with any Person;
(viiiv) any settlement, conciliation or similar agreement, all Contracts relating to Indebtedness of the performance of which will involve payment after the Closing Date of consideration Company in excess of $500,000100,000;
(v) all collective bargaining or similar labor Contracts;
(vi) all Contracts that (A) limit or contain restrictions on the ability of the Company to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties, to change the lines of business in which it participates or engages or to engage in any Business Combination or (B) require the Company to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(vii) all Contracts between or among the Company on the one hand and any of Sellers or Sellers’ Associates or any employees of the Company on the other hand (other than Benefit Plans and employment contracts already disclosed in Schedule 3.17(a) and described in (i) above);
(viii) all other Contracts that (A) involve the payment or potential payment, pursuant to the terms of any contract such Contract, by or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less more than $500,000);100,000 and (B) cannot be terminated within thirty (30) calendar days after giving notice of termination without resulting in any material cost or penalty to the Company; and
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
extent not otherwise covered by clauses (xii) any contract or agreement involving annual payments in excess to (viii) above, and except for Contracts related to the actual assignment and sale of $500,000 that cannot be cancelled individual loans made by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, Borrowers in the ordinary course of business;business in accordance with past practices, all written Contracts with Fxxxxx Mae, HUD, GNMA, or Fxxxxxx Mac and all other Contracts pursuant to which the Company originates, sells or services mortgage loans.
(xivb) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports Each Contract required to limit or restrict be disclosed in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (BSchedule 3.17(a) is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against the Company to the extent a party thereto in accordance with its terms terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, recharacterization or other similar laws affecting creditor’s rights generally and by general equitable principles (Cregardless of whether considered in a proceeding in equity or at law); and except as disclosed in Schedule 3.17(b), (i) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any is not in violation or breach of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material such Contract will be increased, (and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time or both, would constitute a material not be in violation or breach of or default under any such Contract), and (ii) neither Sellers nor the Company has received written notice that any other party to a Contract claims that such Contract is not its legal, valid and binding obligation or permit termination, modification, is unenforceable against such other party or acceleration, that the Company is in default under such Contract.
(c) The surety under the Material ContractsBond Indemnity Agreement has not made any claim or demand against any other party to such agreement; to the Knowledge of Sellers the surety has not threatened to make any claim or demand against any party to such agreement; and to the Knowledge of Sellers no event has occurred or circumstance exists that is reasonably likely to give rise to or serve as the basis for any claim or demand by the surety under the Bond Indemnity Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Municipal Mortgage & Equity LLC)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Section 3.12(a) of the Investor or its representatives true, correct and complete copies of each Disclosure Schedule lists all of the following Contracts that are in effect and to which the Company or any Company Subsidiary is a party or to which it, or any of its assets and properties, is bound (eacheach such Contract, a “Material Contract”):
(i) any contract employment, independent contractor, consulting or agreement relating to indebtedness services Contracts, in each case with Company Personnel that provide for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of an annual base salary above $500,000, except for those issued in the ordinary course of business100,000;
(ii) any contract change in control, transaction bonus or agreement that constitutes a collective bargaining or other arrangement retention Contracts, in each case with any labor unionCompany Personnel;
(iii) collective bargaining agreements or other Contracts with any contract labor union or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kother employee representative body;
(iv) Contracts containing any lease material restriction on the Company’s solicitation, hiring or agreement under which the Company or engagement of any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000Person;
(v) Contracts that (A) grant any lease or agreement under which exclusive rights (including exclusive rights in Company Intellectual Property) to any Person, (B) limit the Company or any freedom of the Company Subsidiaries is lessor of, or permits to compete with any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or geographic area, (C) materially restrict the research, development, manufacture, marketing, distribution, sale, supply, license or marketing of the products and services of the Company or that the Company or any Affiliate currently plans to competedevelop or (D) materially limit the freedom of the Company to use any Company Intellectual Property after the Closing Date;
(vi) Contracts for the purchase or sale of products or the furnishing or receipt of services (A) requiring or otherwise involving payment by or to the Company of more than an aggregate of $100,000 in a twelve (12) month period, whether by restricting territories(B) in which the Company has granted manufacturing rights, customers (C) in which the Company has granted “most favored nation” pricing provisions relating to any products or otherwise, territory or (D) in any other material respect, which the Company has agreed to purchase a minimum quantity of goods or services with any Persona value greater than $100,000 or has agreed to purchase certain goods or services exclusively from a certain party;
(vii) any settlementContracts relating to capital expenditures or other purchases of materials, conciliation supplies, equipment or similar agreement, other assets or properties (other than purchase orders for inventory or supplies entered in the performance Ordinary Course of which will involve payment after the Closing Date of consideration Business) (A) in excess of $500,000100,000 in a twelve (12) month period; or (B) that include minimum purchase requirements;
(viii) any contract option, warrant, purchase right, or agreement that relates to Intellectual Property Rights other Contract (other than a license granted to this Agreement) that could require the Company for commercially available software licensed on standard terms with a total replacement cost to sell, transfer, or otherwise dispose of less any assets of the Company other than $500,000)the sale of the Company Products to customers in the Ordinary Course of Business;
(ix) any contract Contracts (or agreement that concerns letters of intent) involving the sale disposition or acquisition of any material product line, business or significant portion of the assets, properties or business of the Company’s business, or any merger, consolidation or similar business combination transaction, whether or not enforceable;
(x) any alliance, cooperation, joint venture, shareholders, partnership Contracts that have material continuing obligations or similar agreement interests involving a sharing of profits or losses relating to the payment by the Company of royalties, earnouts, development or any Company Subsidiarycommercialization milestones or other amounts calculated based on the revenues, income, achievement or regulatory, development, or commercial milestones of the Company;
(xi) Contracts for any contract limited liability company, joint venture, partnership, joint product development, strategic alliance or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeco-marketing arrangement;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertakingContracts in which the other party is a healthcare practitioner;
(xiii) any contract or agreement with respect to Contract in which the employment or service of any current or former directors, officers, employees or consultants other party is an Affiliate of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessCompany;
(xiv) Contracts that provide for the indemnification of any contract Person by the Company, except for Contracts entered into in the Ordinary Course of Business;
(xv) Contracts (A) granting to a third party any rights, title, interests, license or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports sublicense to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conductedIntellectual Property, or (yB) right pursuant to which the Company uses or licenses any third party Intellectual Property or has been granted by a third party any rights, title, interests, license or sublicense to any Intellectual Property, except, in each case, for Off-the-Shelf Software Licenses;
(xvi) Contracts (other than trade debt incurred in the Ordinary Course of first refusal Business) under which the Company has borrowed (or right may borrow) any money from, or issued (or may issue) any note, bond, debenture or other evidence of first offer Indebtedness to, any Person;
(xvii) Contracts granting a Lien (other than Permitted Liens) upon any property or similar right or that limits or purports to limit the ability asset (including Intellectual Property) of the Company Company;
(xviii) Contracts involving any resolution or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose settlement of any material assets or businessAction;
(xix) Contracts with any Governmental Entity; and
(xvxx) any material contract Any other Contracts involving future payments by or agreement that would require any consent or approval to the Company in excess of $100,000 in a counterparty as a result of the consummation of the transactions contemplated by this Agreement. twelve (12) month period.
(b) Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect effect, and is valid and binding and enforceable in accordance with its terms against the Company and, to the Knowledge of the Company, the other parties thereto, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and (C) will continue general principles of equity. A true, correct and complete copy of each written Material Contract has been made available in the Data Room to be legalBuyer and its Representatives. There is no material violation, validbreach or default under any Material Contract by the Company or, bindingto the Knowledge of the Company, enforceableby any other party thereto, and in full force and effect in all no event has occurred or condition exists that with the lapse of time or the giving of notice or both would constitute a material respects following the consummation of the transactions contemplated default thereunder by the Transaction Documents. Neither the Company nor any of the Company Subsidiariesor, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each of Schedule 4.15(a) lists the following Contracts to which the Company or any Company Subsidiary NorMedix is a party (each, a “Material Contract”):party:
(i) any contract Contract (or agreement relating group of related Contracts) for the lease of personal property to indebtedness or from any Person providing for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) payments in excess of $500,000, except for those issued in the ordinary course of business5,000 per annum;
(ii) any contract Contract (or agreement that constitutes group of related Contracts) for the purchase or sale of personal property, or for the furnishing or receipt of services, the performance of which will extend over a collective bargaining period of more than one year or other arrangement with any labor unioninvolve consideration in excess of $5,000;
(iii) any contract Contract concerning a partnership or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kjoint venture;
(iv) any lease Contract (or agreement group of related Contracts) under which the Company NorMedix has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any of the Company Subsidiaries is lessee ofcapitalized lease obligation, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,0002,500 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any lease Contract concerning confidentiality or agreement under which non-competition other than non-disclosure agreements entered into in the Company or any Ordinary Course of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company SubsidiariesBusiness;
(vi) any contract Contract under which NorMedix is currently or agreement limiting, in any material respect, the ability of the Company potentially obligated to share revenues or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in income with any other material respect, with any Person;
(vii) any settlement, conciliation Contract with a Seller or similar agreement, the performance any of which will involve payment after the Closing Date of consideration in excess of $500,000its Affiliates;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any allianceprofit sharing, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, stock option, forward purchasingstock purchase, swapstock appreciation, derivative deferred compensation, severance, or similar agreement, understanding other plan or undertaking;
(xiii) any contract or agreement with respect to Contract for the employment or service benefit of any its current or former directors, officers, employees or consultants employees;
(ix) any collective bargaining Contract;
(x) any Contract for the employment of the Company any individual on a full-time, part-time, consulting, or other basis;
(xi) any Contract under which NorMedix has advanced or loaned any amount to any of its directors, officers, or employees (other than travel advances);
(xii) any Contract under which the Company Subsidiaries other than, with respect to non-executive employees consequences of a default or termination would have a Material Adverse Effect;
(xiii) any Contract under which NorMedix has granted any Person any registration rights (including demand and consultants, in the ordinary course of businesspiggyback registration rights);
(xiv) any contract Contract (other than Contracts with customers in the Ordinary Course of Business) under which NorMedix has agreed to indemnify any other Person for any loss, expense or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; andLiability;
(xv) except as set forth in SECTION 4.15(a)(xi), any material contract Contract under which NorMedix has advanced or agreement that would require loaned any consent or approval of a counterparty as a result of other Person amounts in the consummation of the transactions contemplated by this Agreement. Each Material aggregate exceeding $5,000; or
(xvi) any other Contract (Aor group of related Contracts), understanding or course of dealing that will require NorMedix to make any payment in excess of $2,500 after the Closing (other than in the Ordinary Course of Business).
(b) NorMedix has delivered to SurModics a correct and complete copy of each written Contract (as amended to date) listed in Schedule 4.15(a) and a written summary setting forth the terms and conditions of each oral Contract referred to in Schedule 4.15(a). With respect to each such Contract: (i) the Contract is legal, valid valid, binding, enforceable (except that the enforcement thereof may be limited by the Enforcement Limitations) and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and effect; (Cii) the Contract will continue to be legal, valid, binding, enforceable, (except that the enforcement thereof may be limited by the Enforcement Limitations) and in full force and effect in all material respects on identical terms following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company SubsidiariesTransactions; (iii) neither NorMedix nor, nor to the Knowledge of the CompanyNorMedix’s Knowledge, any other party thereto is in material violation breach or default under any Material Contract. No benefits under any Material Contract will be increaseddefault, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default default, or permit termination, modification, or acceleration, under the Material ContractsContract; and (iv) neither NorMedix nor, to NorMedix’s Knowledge, any other party has repudiated any provision of the Contract.
Appears in 1 contract
Contracts. The Neither the Company has Previously Disclosed nor any of its Subsidiaries is a party to or provided bound by any contract, arrangement, commitment or understanding (by hard copywhether written or oral) (i) which, electronic data room to the Knowledge of the Company, is an employment agreement that, upon Consummation of the Offer or the effectiveness of the Merger, could (either alone or upon the occurrence of any additional acts or events) result in any payment or benefits (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any rights to the Investor any payment or its representatives truebenefits, correct and complete copies of each of the following to which from Parent, Purchaser, the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract the Surviving Corporation or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingtheir respective Subsidiaries to any officer, but in any event excluding trade payablesdirector or consultant thereof, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that which is a “material contract” within the meaning of contract (as defined in Item 601(b)(10) of Regulation S-K;
(ivK of the SEC) any lease to be performed in whole or agreement under which in part after the date of this Agreement that has not been filed or incorporated by reference in the Company SEC Reports filed prior to the date hereof, (iii) which contains any material restriction or limitation on the conduct of any business or line of the Company Subsidiaries is lessee ofbusiness, or holds or operatesthe scope of business that may be conducted, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of its Subsidiaries, including geographic limitations on the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company Company's or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contractits Subsidiaries' activities, (Biv) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, which contains any other party thereto is in material violation restriction or default under limitation on the solicitation, hiring, retention or termination of any Material Contract. No employee, (v) (including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan) any of the benefits under any Material Contract of which will be increased, and no or the vesting of any the benefits under any Material Contract of which will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documentsthis Agreement, nor will or the value of any of the benefits under any Material Contract of which will be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesthis Agreement, and (vi) which, to the Knowledge of the Company, each provides for an outstanding loan or advance (excluding advances for travel and entertainment expenses made in accordance with the Company's customary policies for such advances) in an amount in excess of $50,000 to any stockholder, director or officer of the other parties theretoCompany or any of its Subsidiaries, have performed in all material respects all material obligations required to be performed by them under each Material Contract(vii) which, and to the Knowledge of the Company, no event provides for indemnification of any current or former officer or director of the Company or any of its Subsidiaries, (viii) which is a requirements contract for vehicle purchases that contains minimum purchase requirements or (ix) which is otherwise material to the Company and its Subsidiaries. Each contract, arrangement, commitment or understanding of the type described in this Section 6.20(a), whether or not set forth in Section 6.20(a) of the Company Disclosure Schedule, is referred to herein as a "MATERIAL CONTRACT." The Company has occurred that with notice or lapse previously made available to Parent true, complete and correct copies of time would constitute a material breach or default or permit termination, modification, or acceleration, under the each Material ContractsContract.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Section 3.16 of the Investor or its representatives true, correct and complete copies of Disclosure Schedule lists each of the following Contractual Obligations to which the any Acquired Company or any Company Subsidiary is a party (each, a “Material Contract”):bound:
(i) any contract Contractual Obligation (or agreement relating to indebtedness group of related Contractual Obligations) for borrowed moneythe sale of products or services or for the purchase of products or services which will, letters by its terms, extend over a period of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements more than one (including guarantees in respect of any of 1) year after the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessdate hereof;
(ii) any contract Contractual Obligation pursuant to which a partnership or agreement that constitutes joint venture was established;
(iii) any Contractual Obligation made other than in the Ordinary Course of Business (x) providing for the grant of any preferential rights of first offer or first refusal to purchase or lease any Asset of the Acquired Company or (y) providing for any exclusive right to sell or distribute, or otherwise relating to the sale or distribution of, any product or service of the Acquired Company;
(iv) any Contractual Obligation under which an Acquired Company has permitted any Asset to become, or to become subject to, an Encumbrance (other than by a Permitted Encumbrance);
(v) any Contractual Obligation providing for the employment or consultancy of any Person on a full-time, part-time, consulting or other basis or otherwise providing Compensation or other benefits to any officer, director, employee or consultant (other than a Company Plan) in excess of $1,000,000 per year;
(vi) any collective bargaining or other arrangement agreement with any labor union;
(iiivii) any contract Contractual Obligation containing covenants that (A) restrict any Acquired Company from any solicitation, hiring or agreement that is a “material contract” within engagement of any Person or the meaning solicitation of Item 601(b)(10any customer or (B) limit the freedom of Regulation S-K;
(iv) any lease or agreement under which the Acquired Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries Affiliate thereof to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
(viiviii) any settlementoutstanding general or special powers of attorney executed by or on behalf of an Acquired Company;
(ix) any Contractual Obligation under which an Acquired Company has advanced or loaned an amount to, conciliation or similar received a loan, note, or other instrument, agreement, or arrangement for or relating to the borrowing of money from, any of its Affiliates, members, officers, managers, members of the board of managers, or employees, other than in the Ordinary Course of Business;
(x) any Contractual Obligation (or group of related Contractual Obligations) the performance of which will involve mandates payment after the Closing Date of consideration in excess of $500,000;
2,000,000 per annum over the remaining life of such Contractual Obligation, other than (viiiA) any contract or agreement Contractual Obligation that relates to Intellectual Property Rights (other than a license granted to the is terminable by an Acquired Company for commercially available software licensed at will without material liability and on standard terms with a total replacement cost of less than $500,000);
ninety (ix90) any contract or agreement that concerns days’ notice and (B) purchase orders received in the sale or acquisition Ordinary Course of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company SubsidiaryBusiness;
(xi) any contract guaranty by an Acquired Company or agreement involving annual payments any Affiliate of any obligation of another, other than in the Ordinary Course of Business and in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;2,000,000; and
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;obligation to register any Equity Interests with any Governmental Authority.
(xiiib) any contract or agreement with respect The Company has made available to the employment or service Buyer copies of any current or former directors, officers, employees or consultants each Contractual Obligation listed on Section 3.16 of the Company Disclosure Schedule that are accurate and complete, in each case, as amended or any otherwise modified and in effect. Each Contractual Obligation required to be disclosed on Section 3.16 of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in Disclosure Schedule (the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B“Disclosed Contracts”) is in full force and effect and is enforceable in accordance with its terms and (C) will continue against each party to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation such Contractual Obligation. None of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company SubsidiariesAcquired Companies nor, nor to the Knowledge of the Company’s Knowledge, any other party thereto to any Disclosed Contract is in material breach or violation of, or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modificationunder, or accelerationhas repudiated any provision of, under the Material Contractsany Disclosed Contract.
Appears in 1 contract
Samples: Sale and Purchase Agreement (HL Acquisitions Corp.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any Section 4.11 of the Company Subsidiaries is lessee of, Disclosure Schedule sets forth a list of all material written and oral contracts or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses agreements relating to the Company or any Company Subsidiary;
, including without limitation any: (xii) any contract resulting in a commitment or agreement potential commitment for expenditure or other obligation or potential obligation, or which provides for the receipt or potential receipt, involving annual payments in excess of One Hundred Thousand Dollars ($500,000 100,000) in any instance, or series of related contracts that cannot be cancelled in the aggregate give rise to rights or obligations exceeding such amount, other than contracts ("Customer Contracts") with health plans and providers, entered into by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, Company's managed care business in the ordinary course of business;
, (xivii) the twelve (12) largest Customer Contracts based upon revenues generated to the Company; (iii) indenture, mortgage, promissory note, loan agreement, guarantee or other agreement or commitment for the borrowing or lending of money or encumbrance of assets involving more than One Hundred Thousand Dollars ($100,000) in each instance; (iv) agreement which restricts the Company from engaging in any line of business or from competing with any other person; (v) warranties made with respect to products manufactured, packaged, distributed or sold or services provided by the Company; (vi) any contract agreement which terminates, or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports gives another party the right to limit or restrict in any respect terminate such agreement, upon the ability completion of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions transaction contemplated by this Agreement. Each Material Contract ; or (Avii) any other contract, agreement, instrument, arrangement or commitment that is legalmaterial to the condition (financial or otherwise), valid results of operation, assets, properties, liabilities, business or prospects of the Company (collectively, and binding together with all other agreements required to be disclosed on the Company Disclosure Schedule the "Company Material Contracts"). The Company has previously furnished to Parent true, complete and correct copies of all written agreements, as amended, required to be listed on Section 4.11 of the Company Subsidiaries which Disclosure Schedule.
(b) The Company Material Contracts are a party to such contract, (B) is each in full force and effect and enforceable in accordance with its terms are the valid and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any legally binding obligations of the Company Subsidiariesand, nor to the Knowledge best of Company's knowledge, the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.other
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies Schedule 3.8 sets forth a list of each all Material Contracts as of the following date of this Agreement. For purposes of this Agreement, “Material Contract” means any Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound (eachin each case, a “Material Contract”):excluding any Seller Plan) that:
(i) any contract is or agreement relating would be required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of be filed as an exhibit to the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-KK under the Securities Act;
(ii) relates to the formation, creation, governance, economics or control of any joint venture, partnership or other similar arrangement, other than (A) with respect to any partnership that is wholly owned by the Company or any of its wholly owned Subsidiaries and (B) for the avoidance of doubt, marketing, licensing, manufacturing, and distribution Contracts entered into in the Ordinary Course;
(iii) provides for Indebtedness for borrowed money of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $2,500,000, other than Indebtedness solely between or among the Company and any of its wholly owned Subsidiaries (other than Non-Debtor Subsidiaries);
(iv) relates to the acquisition or disposition of any lease business, assets or agreement properties (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $2,500,000 (A) that was entered into after January 1, 2017 or (B) pursuant to which any 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 $2,500,000 after the date hereof (in each case, excluding for the avoidance of doubt, acquisitions of Inventory in the Ordinary Course or dispositions of Inventory, properties or other assets that are obsolete, worn out, surplus, no longer used or in the Ordinary Course);
(v) is a Contract (other than a purchase order) (A) with any Material Supplier or (B) for the purchase of materials, supplies, goods, services, Equipment or other assets pursuant to which the Company or any of the Company its Subsidiaries is lessee ofwould reasonably be expected to make payments of more than $2,500,000 during any fiscal year (other than a Contract with any Material Supplier), or holds or operates, including all Contracts (other than purchase orders) with a single vendor if payments to such vendor collectively add up to more than $2,500,000 during any property owned by any other Person with annual rent payments in excess of $500,000fiscal year;
(vvi) is a Contract (other than a purchase order) with a direct or indirect customer of the Company or any lease or agreement under of its Subsidiaries pursuant to which the Company or any of its Subsidiaries received aggregate net payments of more than $2,500,000, during the Company Subsidiaries is lessor offiscal year ended December 31, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries2019;
(vivii) contains any contract or agreement provision (A) limiting, in any material respect, the ability right of the Company or any of the Company its Subsidiaries to engage in any line of business or to competebusiness, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
, solicit or hire any person for employment or to provide services or operate anywhere in the world, other than any provision in any license agreement for Intellectual Property limiting the Company’s or any of its Subsidiary’s use of such Intellectual Property, including to specified fields of use or specified territories, (viiB) granting any settlementexclusivity right to any third party, conciliation (C) containing a “most favored nation” provision, (D) containing any option, right of first refusal or preferential or similar agreement, right in favor of any third party or (E) that is a “take or pay” or similar provision requiring the performance business to make a minimum payment for goods or services from third party suppliers irrespective of which will involve payment after the Closing Date of consideration in excess of $500,000usage;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than is a license granted to the Company for commercially available software licensed on standard terms Contract with a total replacement cost of less than $500,000)Governmental Body;
(ix) any contract or agreement is a Contract that concerns the sale or acquisition requires future capital expenditure obligations in excess of any material portion of the Company’s business$1,000,000;
(x) is a Contract under which any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or its Subsidiaries is (A) lessee of or holds or operates any personal property, owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $1,000,000, or (B) lessor of or permits any third party to hold or operate any personal property owned or controlled by any of the Company Subsidiaryor its Subsidiaries;
(xi) is a Contract that requires the indemnification or holding harmless of any contract or agreement involving annual payments Person, other than those entered into in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeOrdinary Course;
(xii) is a Contract relating to any material hedge, collar, option, forward purchasing, swap, forward, futures, warrant, option or other derivative or similar agreement, understanding or undertakingtransaction;
(xiii) any contract is a letter of credit or surety or guarantee agreement or other similar undertaking with respect to contractual performance;
(xiv) is a Contract with or for the employment or service benefit of any current Affiliate of Sellers or former directorsAcquired Subsidiaries (other than this Agreement and the Ancillary Agreements);
(xv) is a Contract pursuant to which the Company or any of its Subsidiaries (A) receives a license to use any Intellectual Property that is material to the continued operation of the business of the Company and its Subsidiaries, officerstaken as a whole (other than any license for commercial off-the-shelf Software costing or having an annual fee of less than $500,000 or any open source software license); (B) grants a license to use any material Company Owned Intellectual Property (other than any nonexclusive licenses of Intellectual Property granted in the Ordinary Course); or (C) receives or grants a right of co-existence, employees covenant not to xxx or consultants other form of non-assertion with respect to any material Company Owned Intellectual Property; or
(xvi) is a written or oral commitment or agreement to enter into any of the foregoing.
(b) Subject to requisite Bankruptcy Court approvals as described in this Agreement, and assumption by the applicable Seller of the applicable Contract in accordance with applicable Law (including satisfaction by Seller of any applicable Cure Costs) and except (A) as a result of the commencement of the Bankruptcy Case and (B) with respect to any Contract that has previously expired in accordance with its terms, been terminated, restated or replaced, (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 Sellers, 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, 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 Sellers, any other party thereto, have performed all obligations required to be performed by it under each Material Contract, except where such nonperformance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) there is no breach or default on the part of the Company or any of the Company its Subsidiaries other thanunder any Material Contract, with respect to non-executive employees and consultantsexcept where such default would not, individually or in the ordinary course aggregate, reasonably be expected to have a Material Adverse Effect, (iv) there are no events or conditions which constitute, or, after notice or lapse of business;
(xiv) any contract time or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect both, will constitute a default on the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability part of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor or to the Knowledge of the CompanySellers, any other party thereto is in material violation or default counterparty under any Material Contract. No benefits under any such Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and (v) to the Knowledge of Sellers, the CompanyCompany has not received any notice from any Person that such Person intends to terminate or not renew, each breach or materially amend the terms of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each any Material Contract, and except as would not, individually or in the aggregate, reasonably be expected to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute have a material breach or default or permit termination, modification, or acceleration, under the Material ContractsAdverse Effect.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copya) Except as set forth in Schedule 4.9, electronic data room or otherwise) to neither the Investor or its representatives true, correct and complete copies of each of the following to which the Company or Seller nor any Company Seller Subsidiary is a party (eachto or bound by any agreement or contract, a “Material Contract”):whether written or oral, of the following types that involve the Business, the Transferred Assets, the Assumed Liabilities, or the Buyer's share of the Shared Liabilities nor are any such agreements or contracts presently being negotiated or discussed:
(i) any contract Any contract, lease, agreement, plan or agreement relating arrangement involving commitments to indebtedness for borrowed money, letters of credit, others to make capital lease obligations, obligations secured by a Lien expenditures or interest rate purchases or currency hedging agreements (including guarantees in respect of any of the foregoing, but sales involving $50,000 or more in any event excluding trade payables, securities transactions and brokerage agreements arising one case or $100,000 in the ordinary course aggregate in any period of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in twelve consecutive months which are not cancelable by the ordinary course of businessSeller or the Seller Subsidiaries without penalty on less than 90-days prior written notice;
(ii) Any contract, lease, agreement, plan or arrangement relating to any contract direct or agreement that constitutes a collective bargaining indirect indebtedness for borrowed money (including loan agreements, lease-purchase arrangements, guarantees, agreements to purchase goods or services or to supply funds or other arrangement undertakings on which others rely in extending credit), or any conditional sales contracts, chattel mortgages, equipment lease agreements and other security arrangements with respect to personal property with an obligation in excess of $50,000 in any labor unionone case or $100,000 in the aggregate in any period of twelve consecutive months which are not cancelable by the Seller or the Seller Subsidiaries, without penalty, on less than 90-days prior written notice;
(iii) Any contract, lease agreement, plan or arrangement between the Division and the Seller or any contract Seller Subsidiary or agreement that is a “material contract” within any Affiliate of the meaning of Item 601(b)(10) of Regulation S-KSeller or any Seller Subsidiary or related party in their respective individual capacities;
(iv) any lease Any employment, consulting or agreement under which the Company management services contract or any confidentiality or proprietary rights agreements with any employee of the Company Subsidiaries is lessee of, Seller or holds any Seller Subsidiary or operates, any property owned by any other Person with annual rent payments in excess of $500,000third party;
(v) any lease or agreement under which Any contract containing covenants limiting the Company freedom of the Seller or any Seller Subsidiary to compete in any line of the Company Subsidiaries is lessor of, business with any person or permits in any Person to hold area or operate, any property owned or controlled by the Company or any of the Company Subsidiariesterritory;
(vi) any contract Any license agreement, either as licensor or agreement limitinglicensee, in any material respect, the ability of the Company or any other agreement or arrangement of the Company Subsidiaries any type relating to engage in any line of business patent, trademark or to compete, whether by restricting territories, customers trade name or otherwise, or in any other material respect, with any PersonTransferred Asset;
(vii) Any contract, agreement or arrangement of any settlementkind whatsoever, conciliation whether exclusive or similar agreementotherwise, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000with any sales agent, representative, franchisee or distributor;
(viii) any Any contract or agreement that relates to Intellectual Property Rights (other than a license granted to arrangement of any kind whatsoever which requires the Company for commercially available software licensed on standard terms with a total replacement cost payment of less than $500,000)royalties;
(ix) Any prime contract with any contract government or agreement that concerns the sale any agency or acquisition of any material portion of the Company’s businessinstrumentality thereof;
(x) Any contract with respect to the discharge or removal of effluent, wastes or pollutants of any alliance, cooperation, nature;
(xi) Any joint venture, shareholders, partnership or similar other cooperative arrangement or any other such agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;profits; or
(xixii) Any other legally binding contract, lease, agreement, plan or arrangement not of the type covered by any contract of the other items of this Section 4.9 involving money or agreement involving annual payments property having an obligation in excess of $500,000 that can50,000 in any one case or $100,000 in the aggregate in any period of twelve consecutive months which are not be cancelled cancelable by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers Seller or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Seller Subsidiaries, nor to the Knowledge of the Companywithout penalty, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractsless than 90-days prior written notice.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to Section 4.13(a) of the Investor or its representatives true, correct Disclosure Schedules sets forth an accurate and complete copies list of each all of the following types of Contracts (other than Contracts with respect to which no Company Entity will be bound or have any Liability after the Closing) to which a Company or any Company Subsidiary Entity is a party (each, a “Material Contract” and, collectively, the “Material Contracts”):
(i) any contract all Contracts for the purchase, exchange, delivery or agreement relating to indebtedness for borrowed moneysale of electric power, letters of creditcapacity, capital lease obligationsancillary services, obligations secured transmission services, renewable energy credits or other environmental attributes generated by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessCompany Entity;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionall interconnection Contracts for electricity;
(iii) any contract or agreement that is all Contracts for construction, management, operation, maintenance of a “material contract” within the meaning of Item 601(b)(10) of Regulation S-KProject;
(iv) any lease all Contracts by or agreement under which the Company with a manufacturer or any vendor of the Company Subsidiaries is lessee of, equipment owned or holds or operates, any property owned leased by any other Person Company Entity for product warranty or repair with annual rent payments a fair market value of more than $500,000;
(v) all Contracts the performance of which by any Company Entity will involve consideration to or from such Company Entity in excess of $500,000 in any year;
(vi) all Contracts relating to the borrowing of money, the extension of credit, the granting of Liens or creating Indebtedness (or guarantying Indebtedness) in excess of $500,000;
(vvii) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor ofall Contracts for investments, capital contributions, or permits any Person to hold the purchase or operate, any property owned or controlled by the Company or any sale of the Company Subsidiaries;
(vi) any contract or agreement limiting, Equity Interests in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(viiviii) any settlement, conciliation all Contracts that require Support Obligations by or similar agreement, the performance on behalf of which will involve payment after the Closing Date of consideration a Company Entity in excess of $500,000;
(viiiix) any contract all Contracts for the development or agreement that relates to license of Company Intellectual Property Rights (other than a license granted to the Company for generally commercially available software licensed on standard terms pursuant to a non-exclusive license or any non-exclusive Contracts with any Person to whom a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s businessCompany Entity provides services;
(x) any alliance, cooperationall Contracts establishing a partnership, joint venture, shareholders, partnership venture or similar agreement involving arrangement between a sharing of profits or losses relating to the Company or any Company SubsidiaryEntity and a third party;
(xi) all Contracts containing any contract material restriction or agreement involving annual payments limitation on the ability of any Company Entity to compete, solicit customers or otherwise conduct any business anywhere in excess the world or the grant of $500,000 that cannot be cancelled by the Company any exclusive rights in any market, field or a Company Subsidiary without penalty on not more than 90 days’ noticeterritory;
(xii) any material hedgeall Contracts that are or involve hedging, collarderivative, option, forward purchasing, swap, derivative or swap and similar agreement, understanding or undertakingagreements with a value in excess of $500,000;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of businessall Affiliate Contracts;
(xiv) all Contracts for employment of any contract Business Service Provider that provides for: (A) a term of employment (anything other than at-will employment); or agreement containing any (xB) non-competition or exclusive dealing obligations severance or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; andbenefits upon termination;
(xv) any material contract Contract or agreement that would require Employee Benefit Plan for which any consent of the benefits, compensation or approval payments will be increased, the vesting of benefits will be accelerated or a counterparty payment will be required, as a result of the consummation of the transactions contemplated by set forth in this Agreement. Each Material ;
(xvi) any collective bargaining Contract or Contract with labor unions or representatives of employees;
(Axvii) any Contract that is legala subscription, valid and binding on option, purchase or sale, pledge, security, voting, shareholder or investor rights agreement with respect to, or that establishes the terms of, or that governs voting, transfer, consent, dividend, distribution or other rights or obligations of Persons owning, holding or having an interest in, the Equity Interests of any Company and the Company Subsidiaries which are Entity;
(xviii) any Contract with a party Governmental Authority;
(xix) all Contracts (other than those referred to such contractin Sections 4.13(a)(i), (Bii), (iii) or (iv)) under which any Company Entity has either an obligation or a right to (x) purchase, sell, lease or exchange Assets (of any kind) or (y) provide or receive services of any kind, in each case involving payments by or to any Company Entity over the life of that Contract equal to or greater than $500,000;
(xx) all Contracts involving the settlement of any pending or threatened Action or Claim (or series of related Actions or Claims) which will involve (a) payments by or to any Company Entity (in excess of insurance proceeds in the case of payments by any Company Entity) equal to or greater than $500,000 or (b) injunctive or other equitable relief; and
(xxi) any other Contract that is material to the ownership or operation of a Project or any Company Entity.
(b) The Sellers have Made Available to Buyer an accurate and complete copy of each Material Contract. With respect to each Material Contract: (i) such Contract is in full force and effect and is a valid and binding obligation of the applicable Company Entity, subject to the Remedies Exceptions, and, to the Knowledge of Target Entities, each other party thereto; (ii) such Material Contract is enforceable against each applicable Company Entity, subject to the Remedies Exceptions, and, to the Knowledge of Target Entities, each other party thereto, in accordance with its terms terms; and (Ciii) will subject to procurement of the Required Consents, (A) upon consummation of the transactions set forth in this Agreement, shall continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following on identical terms from and after the consummation Closing without penalty or other adverse consequence and (B) except as set forth on Section 4.13(b) of the transactions contemplated Disclosure Schedules, there is no default, or claim by a Material Contract counterparty of default thereunder, by the Transaction Documents. Neither the applicable Company nor any of the Company SubsidiariesEntity, nor or, to the Knowledge of the CompanyTarget Entities, by any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedthereto, and no vesting event has occurred which, with the passage of any benefits under any Material Contract will be acceleratedtime or the giving of notice (or both), would constitute a default thereunder by the occurrence of any of the transactions contemplated by the Transaction Documentsapplicable Company Entity, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and or to the Knowledge of the CompanyTarget Entities, each by any other party thereto, or would permit modification, acceleration, or termination of a Material Contract. None of the other parties theretoCompany Entities has received written notice, have performed in all material respects all material obligations required to be performed by them under each Material Contractor, and to the Knowledge of the CompanyTarget Entities, no event has occurred any other notice, from any other party to any Material Contract that with notice such party intends to terminate, modify or lapse of time would constitute renegotiate such Material Contract in a material breach or default or permit termination, modification, or acceleration, under the Material Contractsmanner that is adverse to any Company Entity.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Ormat Technologies, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct and complete copies of each Except as set forth on Section 5.17(a) of the following to which Company Disclosure Letter, as of the date hereof, neither of the Company or any Company Subsidiary of its Subsidiaries is a party (each, a “Material Contract”):to or bound by any:
(i) any contract or agreement relating Contract that would be required to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured be filed by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is Company as a “material contract” within the meaning of pursuant to Item 601(b)(10) of Regulation S-KK under the Securities Act or disclosed by the Company on a Current Report on Form 8-K that has not been filed or incorporated by reference in the Company SEC Reports;
(ii) indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness, in each case providing for Indebtedness in excess of $50,000,000, other than Indebtedness solely between or among any of the Company and any of its wholly owned Subsidiaries;
(iii) Collective Bargaining Agreement;
(iv) any lease Contract that contains a put, call, right of first refusal or agreement under similar right pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person, other than any Contract disclosed under clause (viii) below entered into in the Company Subsidiaries is lessee ofordinary course of business and not having, or holds that would not reasonably be expected to have, individually or operatesin the aggregate, any property owned by any other Person with annual rent payments in excess of $500,000a Company Material Adverse Effect or a Company Impairment Effect;
(v) any lease or agreement under Contract to which the Company or any of the Company its Subsidiaries is lessor a party related to (A) licensing, use, or development of, or permits for, or grant any Person rights, immunity, license, or covenant not to hold sue to or operateunder, any property owned Material Company IP that has a maximum potential value (or controlled by which otherwise requires the receipt or making of payments) in excess of $15,000,000 (including pursuant to any “earn-out,” contingent value rights, milestone payments, license fees, royalty payments, development costs or other contingent payment or value obligations), (B) that restricts the Company’s or any of its Subsidiaries’ ability to use or enforce any Material Company IP that is Company Owned IP, or (C) pursuant to which any material Computer Systems are licensed to the Company or any of its Subsidiaries (in each case of (A), (B), and (C), other than (i) pursuant to the Shareholder Agreement, (ii) pursuant to the Trademark Licensing Agreement or (iii) shrink-wrap, click-wrap and any other standard form licenses of uncustomized commercially available off-the-shelf software or Computer Systems granted to the Company Subsidiariesor any of its Subsidiaries or Parent for annual payments of less than $5,000,000);
(vi) any contract or agreement limiting, in any material respect, the ability of Contract that purports to bind the Company or any of its Subsidiaries or Affiliates or, at or after the Company Subsidiaries Effective Time, Parent or any of its controlled Affiliates to engage any material (A) exclusivity provision in favor of the other parties thereto, (B) non-compete provision that limits, curtails or restricts the ability of such Person to compete or conduct activities in any geographic area or line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
Person or (viiC) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration “most favored nation” provision in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion favor of the Company’s business;
(x) any allianceother parties thereto, cooperationin each case, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or one of its Subsidiaries without more than ninety (90) days’ notice without payment of a material penalty, other than, in each case, Contracts entered into the ordinary course of business and not having, or that would not reasonably be expected to have, individually or in the aggregate, a Company Subsidiary without penalty on not more than 90 days’ noticeMaterial Adverse Effect or a Company Impairment Effect;
(xiivii) Contract that obligates the Company or any material hedgeof its Subsidiaries to make a loan, collarcapital contribution to, optionor investment in excess of $10,000,000 in any Person, forward purchasing, swap, derivative or similar agreement, understanding or undertakingother than (i) loans to any Subsidiary of the Company and advances to employees in the ordinary course of business and (ii) as provided for in any Contract disclosed under clause (viii) below;
(xiiiviii) Contract that creates, governs or controls any contract partnership or agreement joint venture or relates to an equity investment that is material to the business of the Company and its Subsidiaries, taken as a whole;
(ix) Contract that obligates the Company or any of its Subsidiaries to purchase or sell any material (A) electric energy, capacity and/or ancillary services or (B) renewable energy certificates, credits or other environmental attributes associated with renewable generation other than any Contract that is on file with FERC, the Connecticut Public Utilities Regulatory Authority, the Massachusetts Department of Public Utilities, the New York Public Service Commission or the Maine Public Utilities Commission; or
(x) other Contract (other than this Agreement, purchase orders for the purchase of inventory or agreements (A) between the Company and any of its Subsidiaries or (B) between any of the Company’s Subsidiaries or disclosed on Section 5.17(a)(i)-(ix) of the Company Disclosure Letter) under which the Company and its Subsidiaries are obligated to make or receive payments in excess of $25,000,000 during the fiscal year ending December 31, 2024 that cannot be cancelled by the Company or one of its Subsidiaries without more than ninety (90) days’ notice without payment of a material penalty (other than Contracts entered into in the ordinary course of business). Each such Contract set forth on Section 5.17(a) of the Company Disclosure Letter under (i) through (x) is referred to herein as a “Company Material Contract.”
(b) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or a Company Impairment Effect or as set forth on Section 5.17(b) of the Company Disclosure Letter, (i) neither the Company nor any of its Subsidiaries is (and, to the Knowledge of the Company, no other party is) in default under or breach of any Company Material Contract, there are no events or conditions, including with respect to any events or conditions as a result of COVID-19, which constitute, or, after notice or lapse of time or both, will constitute, a default on the employment or service of any current or former directors, officers, employees or consultants part of the Company or any of the Company its Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any counterparty, other party thereto than Parent, under such Company Material Contract, (ii) each of the Company Material Contracts is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedfull force and effect and is a valid, binding and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any enforceable obligation of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company its Subsidiaries, except (A) that such enforcement may be subject to the Bankruptcy and Equity Exception, (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the Knowledge discretion of the Companycourt before which any proceeding therefor may be brought, each of and (C) to the other parties theretoextent that any Company Material Contract expires in accordance with its terms, (iii) the Company and its Subsidiaries have performed in all material respects all respective material obligations required to be performed by them to date under each the Company Material ContractContracts to which they are a party, and (iv) neither the Company nor any of its Subsidiaries has received any written notice of termination with respect to, and, to the Knowledge of the Company, no event party has occurred that with notice or lapse of time would constitute a material breach or default or permit terminationthreatened in writing to terminate, modification, or acceleration, under the any Company Material ContractsContract.
Appears in 1 contract
Samples: Merger Agreement (Avangrid, Inc.)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) SECTION 2.18(A) OF THE DISCLOSURE SCHEDULE (with paragraph references corresponding to the Investor or its representatives true, correct those set forth below) contains a true and complete copies list of each of the following Contracts or other arrangements (true and complete copies of which, 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 execution of this Agreement) currently in effect, to which the Company or any Company Subsidiary is a party (each, a “Material Contract”):or by which any of its Assets and Properties is bound:
(iA) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term or otherwise relating to employment or the termination of employment of any Employee, the name, position and rate of compensation of each Employee and the expiration date of each such Contract; and (B) any contract written representations, commitments, promises or agreement relating communications (excluding Benefit Plans and any such Contracts referred to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements in clause (including guarantees in respect of any A)) involving an obligation of the foregoing, but Company to make payments in any event excluding trade payablesyear, securities transactions and brokerage agreements arising other than with respect to salary or incentive compensation payments in the ordinary course of business, intercompany indebtedness to any Employee or former employee;
(ii) all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of the Company 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;
(iii) all partnership, joint venture, shareholders' or other similar Contracts with any Person (including, without limitation, the partnership agreement of the Company);
(iv) all Contracts relating to Indebtedness of the Company;
(v) all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchisees;
(vi) all Contracts relating to (A) the future disposition or acquisition of any Assets and immaterial leases for telephones, copy machines, facsimile machines and Properties other office equipment) in excess of $500,000, except for those issued than dispositions or acquisitions in the ordinary course of businessbusiness consistent with past practice and (B) any merger or business combination;
(iivii) all Contracts between the Company, on the one hand, and Sellers or any contract or agreement that constitutes a Affiliate of Sellers, on the other hand;
(viii) all collective bargaining or other arrangement with any similar labor unionContracts;
(iiiix) any contract all Contracts that (A) limit or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, contain restrictions on the ability of the Company to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, or incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties, to change the Company Subsidiaries lines of business in which it participates or engages or to engage in any line of business combination or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(viiB) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to require the Company for commercially available software licensed on standard terms with a total replacement cost to maintain specified financial ratios or levels of less than $500,000);
(ix) any contract net worth or agreement that concerns the sale or acquisition other indicia of any material portion of the Company’s business;financial condition; and
(x) all other Contracts (other than Benefit Plans, leases listed in SECTION 2.15(A) OF THE DISCLOSURE SCHEDULE and insurance policies listed in SECTION 2.20 OF THE DISCLOSURE SCHEDULE) that (A) involve the payment or potential payment, pursuant to the terms of any alliancesuch Contract, cooperation, joint venture, shareholders, partnership by or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
of more than $10,000 annually and (xiB) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by terminated within thirty (30) days after giving notice of termination without resulting in any material cost or penalty to the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;Company.
(xiib) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiiiEach Contract required to be disclosed in SECTION 2.18(A) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) OF THE DISCLOSURE SCHEDULE is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms terms, of each party thereto; and (Cexcept as disclosed in SECTION 2.18(B) will continue to be legalOF THE DISCLOSURE SCHEDULE, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither neither the Company nor any of the Company Subsidiariesnor, nor to the Knowledge of the CompanySellers, any other party thereto is to such Contract is, or has received notice that it is, in material violation or breach of or default under any Material Contract. No benefits under any Material such Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that (or with notice or lapse of time or both, would constitute a material be in violation or breach of or default or permit termination, modification, or acceleration, under the Material Contractsany such Contract) in any material respect.
Appears in 1 contract
Samples: Purchase Agreement (Viewpoint Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwiseSection 3.2(l) to of the Investor or its representatives true, correct and complete copies of Disclosure Schedule lists each of the following Contracts to which the Company or any Company Subsidiary Opto-tech Entity is a party (eachcollectively, a the “Material ContractContracts”):
(i) any contract Contract (or agreement relating group of related Contracts) for the lease of personal property from or to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by third parties with annual payments exceeding EUR50,000 or with a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businessterm exceeding one year;
(ii) any contract Contract concerning a partnership, distributorship, agency, marketing agreement or agreement that constitutes a collective bargaining or other arrangement with any labor unionjoint venture;
(iii) any contract Contract (or agreement that is group of related Contracts) under which such Opto-tech Entity has (A) created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) Indebtedness, or (B) imposed (or may impose) a “material contract” within the meaning Lien on any of Item 601(b)(10) of Regulation S-Ksuch entity’s assets, tangible or intangible;
(iv) any lease or agreement all Contracts under which the Company or any of the Company Subsidiaries work by such Opto-tech Entity is lessee ofnot yet complete, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000under which such Opto-tech Entity otherwise has ongoing obligations;
(v) any lease or agreement under which Contract with any Affiliates of such Opto-tech Entity, the Company Sellers, or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company their respective Affiliates or any of the Company Subsidiariestheir respective managers, directors or officers;
(vi) any contract collective bargaining agreement, labor contract, or other agreement limitingor understanding with any labor organization or labor union;
(vii) any agreement with any officer, manager, individual employee, consultant, independent contractor or other Person that (A) describes any terms or conditions of employment or engagement of such Person, including but not limited to any employment agreement, retention agreement, severance agreement, compensation agreement, change of control agreement, consulting agreement, and independent contractor agreement, (B) imposes upon any officer, manager, individual employee, consultant, independent contractor or other Person any obligation with respect to the assignment of inventions or the nondisclosure or confidentiality of proprietary or confidential information or trade secrets, or (C) restricts the activities of any officer, manager, individual employee, consultant, independent contractor or other Person during or after his or her employment or engagement by such Opto-tech Entity, including any agreement that restricts any such Person’s ability to compete with any Person, provide services to any Person, solicit any Person’s employees, or solicit any Person’s actual or prospective customers, suppliers, or vendors;
(viii) any guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection in the Ordinary Course of Business, or any material respectagreement or commitment with respect to the lending or investing of funds to or in other Persons;
(ix) any Contract or group of related Contracts with the same party (or group of related parties) either (A) requiring payments after the date hereof to or by such Opto-tech Entity of more than EUR50,000 or (B) not terminable by such Opto-tech Entity on sixty (60) days or less notice;
(x) any Contract, the ability benefits of which are contingent or the terms of which are materially altered upon the occurrence of a transaction of the Company nature contemplated by this Agreement involving such Opto-tech Entity;
(xi) any other Contract or group of related Contracts not entered into in the Ordinary Course of Business or the breach, default or termination of which would have a Material Adverse Effect;
(xii) any Contract to which such Opto-tech Entity is a party which is capable of being terminated by the other party upon the occurrence of a transaction of the Company Subsidiaries nature contemplated by this Agreement;
(xiii) any Contract that restricts the right of such Opto-tech Entity to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any PersonPerson or otherwise to freely engage in operations anywhere in the world (including any Contract providing for non-solicitation or employees or other business relations, providing for exclusivity or requirements supply terms or for “most favored nation” pricing or other terms),
(xiv) any Contract regarding confidentiality or nondisclosure;
(viixv) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates Contract related to Intellectual Property Rights (other than a license licenses of generally available, non-customized computer software granted to the Company for commercially available software licensed on standard terms such Opto-tech Entity with a total replacement cost of less than $500,000EUR50,000);
(ixxvi) any contract Contract which involves payment by any party of amounts determined by reference to fluctuations in any retail prices or agreement that concerns other index or in the sale or acquisition rate of exchange for any material portion of the Company’s businesscurrency;
(xxvii) any allianceContract with any (A) Governmental Authority, cooperationor (B) Top Customer or Top Supplier (as such terms are defined below); or
(xviii) any Contract which cannot readily be fulfilled or performed by such Opto-tech Entity on time without penalty without excessive or unusual expenditure of money, joint venture, shareholders, partnership effort or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiarypersonnel;
(xixix) any contract or agreement involving annual payments in excess Contract requiring indemnification of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ noticeanother Person;
(xiixx) any material hedgeContract which is of a loss-making nature (that is, collarlikely to result in a loss to such Opto-tech Entity) on completion of performance ascertained by reference to gross margin (being sales less attributable labor, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement materials and overheads in accordance with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or businessPCN); and
(xvxxi) any Contract whereby such Opto-tech Entity is obligated to pay royalties or license fees to another Person; and
(xxii) any other Contract that is material contract or agreement that would require any consent or approval of a counterparty as a result of to the consummation of the transactions contemplated by this AgreementBusiness. Each Opto-tech Entity has delivered or otherwise made available to Buyer a correct and complete copy of each written Material Contract (including all amendments thereto). With respect to each written Material Contract: (A) the Material Contract is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect, subject to the application of any bankruptcy or creditor’s rights Laws; (B) the Material Contract will continue to be legal, valid, binding, and enforceable and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiariesagainst such Opto-tech Entity (and, nor to the Knowledge of Company, the other parties thereto) on identical terms immediately after the Closing Date; (C) neither any Opto-tech Entity nor, to the Knowledge of Company, any other party thereto to the Material Contract, is in material violation breach or default under (including, with respect to any Material Contract. No benefits under any Material Contract will be increasedexpress or implied warranty), and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that which with notice or lapse of time or both would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contract; and (D) to the Knowledge of Company, no party has repudiated any provision of any such Material Contract. Section 3.2(l) of the Disclosure Schedule sets forth a description of all of the material terms of each oral Contract which, if reduced to written form, would be required to be listed in the Disclosure Schedule under the terms of this Section 3.2(l), and all such oral Contracts shall be deemed to be included in Material Contracts. Correct and complete copies of the general forms of purchase or (for goods and services) sale used by each Opto-tech Entity have been delivered to Buyer, along with a description of any variances therefrom or modifications thereto.
Appears in 1 contract
Contracts. The (a) Section 2.16(a) of the Company has Previously Disclosed or provided Disclosure Schedule (by hard copy, electronic data room or otherwisewith paragraph references corresponding to those set forth below) to the Investor or its representatives true, correct contains a true and complete copies list of each of the following Contracts or other arrangements (true and complete copies of which or, if none, reasonably complete and accurate written descriptions thereof, together with all amendments and supplements thereto and all waivers of any terms thereof, have been provided to Parent prior to the execution of this Agreement), to which the Company or any Company Subsidiary of its Subsidiaries is a party or by which any of their Assets and Properties is bound (each, a such Contracts or other arrangements being referred to herein as the “Material ContractContracts”):
(iA) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultant services for a specified or unspecified term; (B) any contract written or agreement relating to indebtedness for borrowed moneyunwritten representations, letters commitments, promises, communications or courses of credit, capital lease obligations, obligations secured by a Lien conduct involving an obligation of the Company or interest rate or currency hedging agreements (including guarantees in respect of any of its Subsidiaries to make payments (with or without notice, passage of time or both) to any Person in connection with, or as a consequence of, the foregoing, but in any event excluding trade payables, securities transactions contemplated hereby; and brokerage (C) all severance agreements arising in the ordinary course or change of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesscontrol arrangements;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement all Contracts with any labor union;
(iii) Person containing any contract provision or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease covenant prohibiting or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, limiting the ability of the Company or any of the Company its Subsidiaries to engage in any line business activity or compete with any Person or prohibiting or limiting the ability of business any Person to compete with the Company or to competeany of its Subsidiaries;
(iii) all partnership, whether by restricting territoriesjoint venture, customers stockholders’ or otherwise, or in any other material respect, similar Contracts with any Person;
(viiiv) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration all Contracts relating to Indebtedness in excess an amount of $500,000100,000 or more of the Company on a consolidated basis;
(viiiv) any contract trust indenture, mortgage, promissory note, loan agreement or agreement that relates other Contract for the borrowing of money, any guarantees, currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms be capitalized in accordance with a total replacement cost of less than GAAP which in each case exceeds $500,000)100,000;
(ixvi) any contract or agreement that concerns all Contracts relating to (A) the sale future disposition or acquisition of any material portion Assets and Properties with an aggregate value of the Company’s business$100,000 or more, and (B) any Business Combination;
(xvii) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
all Contracts that (xiA) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit contain restrictions on the ability of the Company or any of its Subsidiaries to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Lien, to purchase or sell any Assets and Properties exceeding $25,000, to change the lines of business in which it participates or engages, (B) require the Company or any of its Subsidiaries to ownmaintain specified financial ratios or levels of net worth or other indicia of financial condition, operate, sell, transfer, pledge or otherwise dispose (C) require the Company or any of any material assets its Subsidiaries to maintain insurance in certain amounts or businesswith certain coverages;
(viii) all powers of attorney and comparable delegations of authority; and
(xvix) any material contract or agreement that would require any consent or approval of a counterparty as a result all other Contracts not otherwise required to be disclosed above in Section 2.16(a) of the consummation Disclosure Schedule which are material to the Business or Condition of the transactions contemplated by this Agreement. Company as currently conducted.
(b) Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against the Company in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiariesterms, and to the Knowledge knowledge of the Company, each of the other parties party thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contractand, and to the Knowledge knowledge of the Company, no event party to such Material Contract is, nor has occurred received notice that it is currently in violation or breach of or default under any such Material Contract, except to the extent it would not have, individually or in the aggregate, a Material Adverse Effect on the Business or Condition of the Company (or with notice or lapse of time or both, would constitute a material be in violation or breach of or default under any such Material Contract, except to the extent it would not have, individually or permit terminationin the aggregate, modification, a Material Adverse Effect on the Business or acceleration, under Condition of the Material ContractsCompany).
Appears in 1 contract
Samples: Merger Agreement (Ndchealth Corp)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives true, correct Seller Disclosure Schedule 4.15 contains a true and complete copies of each listing of the following contracts and other agreements with respect to which the Company ownership and operation of the Transferred Assets (each such contract or any Company Subsidiary is a party (each, agreement being referred to herein as a “Material Contract”):
(i) any contract Any water services, exchange agreements or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien gas gathering or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of businesstransportation agreement;
(ii) Any agreement (or group of related agreements with the same Person) for the lease of personal property to or from any contract or agreement that constitutes a collective bargaining or other arrangement with any labor unionPerson providing for lease payments in excess of $250,000 per annum;
(iii) any contract Any agreement (or agreement that group of related agreements with the same Person) for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which is a “material contract” within the meaning reasonably expected to involve annual consideration in excess of Item 601(b)(10) of Regulation S-K$250,000;
(iv) any lease or Any agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than concerning a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperationpartnership, joint venture, shareholders, partnership investment or similar agreement other arrangement (A) involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conductedTransferred Assets, or (yB) right requiring a Subject Company to invest funds in or make loans to, or purchase any securities of, another Person, venture or other business enterprise relating to the Transferred Assets;
(v) Any agreement (or group of first refusal related agreements with the same Person) with respect to the creation, incurrence, assumption, or right guaranteeing of first offer any indebtedness for borrowed money, or similar right any capitalized lease obligation;
(vi) Any agreement that prohibits or that otherwise materially limits or purports to limit the ability of an owner of the Company Transferred Assets to compete in any material respect in any line of business or with any Person or in any material geographic area during any period of time after the applicable Closing;
(vii) Any agreement by and among the EQT Parties, the Subject Companies or any of their respective Affiliates (other than EQM and its Subsidiaries) to the extent applicable to the Transferred Assets and which individually involves annual revenues or payments in excess of $250,000;
(viii) Any collective bargaining agreement;
(ix) Any lease under which any Subject Company Subsidiaries is the lessor or lessee of real property that provides for an annual base rental to ownor from such Subject Company of more than $250,000;
(x) Any easement agreement, operateright-of-way agreement, selllicense or Permit involving an annual payment of more than $250,000;
(xi) Any agreement that governs the use or development of Intellectual Property Assets (other than off-the-shelf software license agreements);
(xii) Any agreement under which the consequences of a default or termination would reasonably be expected to have a Seller Material Adverse Effect; or
(xiii) Any agreement (or group of related agreements with the same Person) not enumerated in this Section 4.15, transferthe performance of which by any party thereto involves consideration in excess of $250,000.
(b) The EQT Parties have made available to EQM Gathering and EQM a correct and complete copy of each Material Contract.
(i) Each Material Contract is legal, pledge valid and binding on and enforceable against Rice Midstream or otherwise dispose the applicable Subject Company, as applicable, and to the EQT Parties’ Knowledge, against the other parties thereto, and is in full force and effect; (ii) none of Rice Midstream or such Subject Company, as applicable, is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by Rice Midstream or such Subject Company, as applicable, or permit termination, modification or acceleration under any Material Contract; (iii) to the Knowledge of the EQT Parties, no other party to any of the Material Contracts is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by such other party, or permit termination, modification or acceleration under any Material Contract, other than in accordance with its terms, nor has any other party repudiated any provision of any material assets or businessMaterial Contract; and
and (xviv) any material contract or agreement that would require any consent or approval of a counterparty as a result of following the consummation of the transactions contemplated by this Agreement. Each , each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, valid and binding and in full force and effect in all material respects following the consummation on identical terms.
(d) Except as set forth on Seller Disclosure Schedule 4.15, none of the transactions contemplated by the Transaction Documents. Neither the Company nor Rice Midstream or any of the Company Subsidiaries, nor to the Knowledge of the Subject Company, as applicable, has given to or received from any other party thereto is in material Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible or potential violation or breach of, or default under any Material Contract. No benefits under under, any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required that continues to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractsunresolved.
Appears in 1 contract
Samples: Contribution and Sale Agreement (EQT Midstream Partners, LP)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Section 4.12 of the Xxxxx Disclosure Letter lists the following Contracts (i) to the Investor or its representatives true, correct and complete copies of each of the following to which the any Xxxxx Company or any Company Subsidiary is a party (each, a “Material Contract”):
(i) or by which any contract Xxxxx Company is bound or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect which any asset of any Xxxxx Company is subject or under which any Xxxxx Company has any rights or the performance of which is guaranteed by any Xxxxx Company and (ii) that either involve amounts of $1,000,000 and a duration of eighteen months or longer or involve amounts of $5,000,000 or more regardless of duration (collectively, with the foregoingXxxxx Leases, but Licenses and Insurance Policies, the “Xxxxx Material Contracts”); provided, that the limitations in any event excluding trade payablesthis clause (ii) do not apply to clauses (D), securities transactions (F) and brokerage agreements arising (M) below: (A) each Contract (or series of related Contracts) that involves delivery or receipt of products or services or that was not entered into in the ordinary course of business; (B) each lease, intercompany indebtedness rental or occupancy agreement, license, installment and immaterial leases for telephonesconditional sale agreement, copy machines, facsimile machines and other office equipmentContract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property, including each Xxxxx Lease and License; (C) in excess each licensing agreement, consent agreement, coexistence agreement, settlement agreement or other Contract with respect to Intellectual Property, including any agreement with any current or former Employee, consultant, or contractor regarding the appropriation or the non-disclosure of $500,000any Intellectual Property, except for those issued in “shrink wrap” and “click-through” licenses to commercially available “off the ordinary course of business;
shelf” software; (iiD) any contract or agreement that constitutes a each collective bargaining agreement and other Contract to or other arrangement with any labor union;
union or other employee representative of a group of employees; (iiiE) each joint venture, partnership or Contract involving a sharing of profits, losses, costs or Liabilities with any contract or agreement other Person; (F) each Contract containing any covenant that is a “material contract” within purports to restrict the meaning business activity of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Xxxxx Company or limit the freedom of any of the Xxxxx Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
; (viiG) each Contract providing for payments to or by any settlementPerson based on sales, conciliation purchases or similar agreementprofits, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted direct payments for goods; (H) each power of attorney; (I) each Contract entered into other than in the ordinary course of business that contains or provides for an express undertaking by any Xxxxx Company to the Company be responsible for commercially available software licensed on standard terms with a total replacement cost consequential, incidental or punitive damages; (J) each Contract (or series of less than $500,000);
related Contracts) for capital expenditures; (ixK) any contract each written warranty, guaranty or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or other similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement undertaking with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries contractual performance other than, with respect to non-executive employees and consultants, than in the ordinary course of business;; (L) each Contract for Indebtedness; (M) each employment or consulting Contract; and (N) each Contract to which any Stockholder or any Related Person of any Stockholder or of any Xxxxx Company is a party or otherwise has any rights, obligations or interests.
(xivb) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge Xxxxx has delivered or otherwise dispose made available to Xxxxxx’x a correct and complete copy of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval each written Xxxxx Material Contract and a written summary setting forth the terms and conditions of a counterparty as a result of the consummation of the transactions contemplated by this Agreementeach other Xxxxx Material Contract. Each Xxxxx Material Contract (A) Contract, with respect to the Xxxxx Companies, is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects and will continue to be so on identical terms following the consummation of Closing Date. Each Xxxxx Material Contract, with respect to the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiariesother parties to such Xxxxx Material Contract, nor to the Knowledge of the any Xxxxx Company, any other party thereto is legal, valid, binding, enforceable, in full force and effect and will continue to be so on identical terms following the Closing Date. No Xxxxx Company is in material violation breach or default under any Material Contract. No benefits under any Material Contract will be increaseddefault, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default default, or permit termination, modification, modification or acceleration, under any Xxxxx Material Contract. To the Knowledge of any Xxxxx Company, no other party is in breach or default, and no event has occurred that with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under any Xxxxx Material ContractsContract. No party to any Xxxxx Material Contract has repudiated any provision of any Xxxxx Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Lance Inc)
Contracts. The Company has Previously Disclosed (i) Except as may be disclosed in the Seller SEC Documents or provided (by hard copy, electronic data room or otherwiseexcept as disclosed in Section 3.1(q) to the Investor or its representatives true, correct and complete copies of each of the following to which the Company or Seller Disclosure Schedule, none of Seller nor any Company Subsidiary of its Subsidiaries is a party to or bound by any: (eachA) Contract that would be required to be filed by Seller with the SEC pursuant to Item 601(b) (1), a “Material Contract”):
(i2), (4) any contract or agreement relating (10) of Regulation S-K under the Securities Act or Item 1.01 or 5.02 of Form 8-K under the Exchange Act, assuming Seller was subject to indebtedness for borrowed moneysuch statutes; (B) Contract with respect to material partnerships, letters joint ventures, acquisitions or dispositions; (C) Contract containing covenants of credit, capital lease obligations, obligations secured by a Lien Seller or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but its Subsidiaries purporting to limit in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course material respect any material line of business, intercompany indebtedness and immaterial leases industry or geographical area in which Seller or its Subsidiaries may operate or granting material exclusive rights to the counterparty thereto; (D) Contract that, individually or in the aggregate with other Contracts, would or would reasonably be expected to prevent, materially delay or materially impede Seller’s ability to timely consummate the Merger or the other transactions contemplated by this Agreement; (E) indenture, mortgage, loan, guarantee or credit Contract under which Seller or any Subsidiary of Seller has outstanding Indebtedness or any outstanding note, bond, indenture or other evidence of Indebtedness or otherwise or any guaranteed Indebtedness of others, in each such case, for telephones, copy machines, facsimile machines and other office equipment) or guaranteeing an amount in excess of $500,000; (F) Contract relating to (1) the sale, except for those issued in the ordinary course of business;
(ii) any contract outbound license, or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any outbound lease or agreement under which the Company by Seller or any of its Subsidiaries of any IRUs or peering arrangements that involve future payments to Seller or any of its Subsidiaries in excess of $500,000 or (2) the Company Subsidiaries is lessee ofpurchase, inbound license, or holds inbound lease by Seller or operates, any property owned of its Subsidiaries of any IRUs or peering arrangements involving future payments by Seller or any other Person with annual rent payments of its Subsidiaries in excess of $500,000;
; (vG) any lease or agreement under which Contract specifically concerning Intellectual Property that is material to the Company business of Seller and its Subsidiaries, taken as a whole; (H) Contract containing a minimum purchase commitment of Seller or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments Subsidiary in excess of $500,000 that canin any 12-month period; or (I) Contract containing a minimum purchase commitment of any customer of Seller or any Subsidiary in excess of $750,000 in any 12-month period. Each such Contract described in clauses (A)-(I), and any material IRUs or peering arrangements (whether or not required to be cancelled by listed in Section 3.1(q) of the Company or Seller Disclosure Schedule) is referred to herein as a Company Subsidiary without penalty on not more than 90 days’ notice;“Seller Material Contract.”
(xiiii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants Each of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries Seller Material Contracts is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on Seller and each of its Subsidiaries party thereto and, to the Company Knowledge of Seller, each other party thereto and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue effect, except for such failures to be legal, valid, binding, enforceable, valid and binding or to be in full force and effect that would not, individually or in all material respects following the consummation of the transactions contemplated aggregate, have a Seller Material Adverse Effect. There is no default under any Seller Material Contract either by the Transaction Documents. Neither the Company nor Seller or any of the Company Subsidiariesits Subsidiaries party thereto or, nor to the Knowledge of the CompanySeller, by any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increasedthereto, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time or both would constitute a material breach default thereunder by Seller or any of its Subsidiaries party thereto or, to the Knowledge of Seller, any other party thereto, in each case except for such defaults which would not, individually or in the aggregate, have a Seller Material Adverse Effect. Seller has not received any notice of alleged default or permit terminationbreach under any Seller Material Contract. Complete and correct copies of each Seller Material Contract (including any exhibits, modificationannexes, attachments, supplements, amendments or accelerationmodifications thereto), under have been delivered or made available to Buyer prior to the Material Contractsdate hereof.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following Company Disclosure Letter includes, as of the date hereof, a list of the Company's material contracts (the "Company Material Contracts") which includes (i) all loan agreements, indentures, mortgages, deeds of trust, pledges, conditional sale or title retention agreements, security agreements, guaranties, standby letters of credit, equipment leases or lease purchase agreements, each in an amount equal to or exceeding $150,000 to which the Company or any Company Subsidiary subsidiary is a party or by which any of them is bound; (eachii) all other contracts, agreements, commitments or other understandings or arrangements other than those addressed in Section 2.15 to which the Company or any of its subsidiaries is a “Material Contract”):
(i) party or by which any contract of them or agreement relating to indebtedness for borrowed moneyany of their respective properties or assets are bound or affected, letters but excluding contracts, agreements, commitments or other understandings or arrangements entered into in the ordinary course of creditbusiness and involving, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect the case of any such contract, agreement, commitment, or other understanding or arrangement, individual payments or receipts by the Company or any Company Subsidiary of less than $150,000 over the foregoingterm of such contract, but in any event excluding trade payablescommitment, securities transactions and brokerage agreements arising agreement, or other understanding or arrangement, except for purchases of inventory in the ordinary course of business, intercompany indebtedness ; and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) all Leases (as hereinafter defined). The Company is not a party to any contract agreements to acquire in the future the stock or agreement that is a “material contract” within substantially all the meaning assets of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any another person. Except as disclosed in Section 2.14 of the Company Subsidiaries is lessee of, Disclosure Letter or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted Securities Filings filed prior to the Company for commercially available software licensed on standard terms with a total replacement cost date of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in whichthis Agreement, all or any portion of the business of the such Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, Contracts are valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable against the Company or such Company Subsidiary in accordance with its terms their respective terms, subject to the Enforceability Exceptions, and neither the Company nor any Company Subsidiary is in violation or breach of or default under any such Company Material Contract (C) will continue nor, to the knowledge of the Company, has any event or condition occurred which, with the giving of notice or the passage of time or both, would reasonably be expected to constitute such a violation, breach or default), except where the failure to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material or where such violation or default under any breach would not reasonably be expected to have a Material ContractAdverse Effect. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by To the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge knowledge of the Company, no party (other than the Company or Company Subsidiaries) is in default, violation or breach of any Company Material Contract (nor, to the knowledge of the Company, has any event has or condition occurred that which, with the giving of notice or lapse the passage of time or both, would reasonably be likely to constitute such a material violation, breach or default default) where such violation or permit termination, modification, or acceleration, under the breach would reasonably be expected to have a Material ContractsAdverse Effect.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copya) For purposes of this Agreement, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each of the following shall be deemed to which the constitute a 'Company or any Company Subsidiary is a party (each, a “Material Contract”):':
(i) any contract or agreement Acquired Company Contract relating to indebtedness for borrowed moneythe employment of any employee, letters and any Contract pursuant to which any of creditthe Acquired Companies is or may become obligated to make any severance, capital lease obligationstermination, obligations secured by a Lien bonus or interest rate relocation payment or currency hedging agreements any other payment (including guarantees other than payments in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipmentXxxx) in excess of $500,000100,000, except for those issued in the ordinary course of business;to any current or former employee or director,
(ii) any contract Acquired Company Contract relating to the acquisition, transfer, development, sharing or agreement that constitutes license of any material Proprietary Asset (except for any Acquired Company Contract pursuant to which (A) any material Proprietary Asset is licensed to the Acquired Companies under any third party software license generally available for sale to the public, or (B) any material Proprietary Asset is licensed by any of the Acquired Companies to any Person on a collective bargaining or other arrangement with any labor unionnon-exclusive basis);
(iii) any contract Acquired Company Contract which provides for indemnification of any officer, director or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kemployee;
(iv) any lease Acquired Company Contract creating or agreement under which the Company relating to any partnership or joint venture or any sharing of the Company Subsidiaries is lessee ofrevenues, profits, losses, costs or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000liabilities;
(v) any lease Acquired Company Contract that involves the payment or agreement under which expenditure of $100,000 or more in any 12-month period or more than $200,000 in the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled aggregate that may not be terminated by the applicable Acquired Company or any (without penalty) within sixty (60) days after the delivery of a termination notice by the Company Subsidiariesapplicable Acquired Company;
(vi) any contract Acquired Company Contract contemplating or agreement limiting, involving (A) the payment or delivery of cash or other consideration in any material respect, an amount or having a value in excess of $100,000 in the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwiseaggregate, or (B) the performance of services having a value in any other material respect, with any Personexcess of $100,000 in the aggregate;
(vii) any settlement, conciliation Acquired Company Contract imposing any restriction on the right or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition ability of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating Acquired Company to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance compete with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.Person,
Appears in 1 contract
Contracts. (a) The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to Disclosure Schedules set forth a list as of the Investor or its representatives true, correct and complete copies date hereof of each all of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party or by which any of them is bound (eachcollectively, a the “Material ContractContracts”):
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) Contracts evidencing Indebtedness in excess of $500,000, except for those issued in the ordinary course of business250,000 (or any guarantee thereof);
(ii) any contract or agreement Company IP Agreements that constitutes a collective bargaining or other arrangement with any labor unionare material to the operation of the business of the Company and its Subsidiaries as currently conducted;
(iii) Contracts relating to the acquisition or disposition of any contract equity, business, product line or agreement material assets or properties of any Person entered into at any time during the last three (3) years (or containing any “earn-out” or contingent payment obligation that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-Kstill outstanding);
(iv) Contracts limiting the freedom of the Company to engage in any lease line of business, acquire any entity or compete with any Person or in any market or geographical area;
(v) Joint venture, partnership, limited liability company or other similar agreements (including any agreement under which providing for joint research, development, distribution or marketing);
(vi) Contacts relating to any interest rate, foreign exchange, derivatives or hedging transaction;
(vii) Contracts that are settlement or similar agreements with any Governmental Authority or that bind the Company or any of its Subsidiaries to any conduct or equitable relief or that require the Company or any of its Subsidiaries to pay an amount of money in excess of $250,000 that has not been completely paid as of the date of this Agreement;
(viii) Contracts under which the Company is lessee of, or holds or operates, operates any personal property owned by any other Person with party, for which the annual rent payments rental exceeds $100,000;
(ix) Contracts relating to any capital expenditure or leasehold improvement in excess of $500,000;
(v) any lease 250,000 in the aggregate that have commenced but are not yet completed or agreement under which that obligate the Company or any of its Subsidiaries to incur expenditures in excess of $250,000 in the aggregate with respect to a project that is not yet commenced; and
(x) Contracts not otherwise of a type listed above (other than Contracts with customers or data suppliers) involving reasonably anticipated payments to or from the Company or any of its Subsidiaries is lessor of, in excess of $250,000 per annum and which do not expire or permits are not terminable at the option of the Company or any Person of its Subsidiaries without substantial cost or penalty within a period of ninety (90) days.
(b) A true and complete copy of each Material Contract as in effect on the date hereof has been made available to hold or operate, any property owned or controlled Parent. No material default by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor or, to the Knowledge of the Company, any the other party thereto is in material violation or default parties thereto, exists under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any Material Contracts. Each of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company Contracts is valid and legally binding on, and enforceable against, the Company or one of its Subsidiaries, and as applicable, and, to the Knowledge of the Company, each of on and against the other party or parties thereto, have performed in all material respects all material obligations required accordance with its terms, subject to be performed by them under each Material Contractbankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contractsgeneral equity principles.
Appears in 1 contract
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives trueSchedule 2.21 sets forth an accurate, correct and complete copies of each list of the following contracts, agreements, arrangements or instruments (the "Contracts") in effect at any time from January 1, 1996 through the date hereof, to which the Company or any Company Subsidiary is or was a party (eachparty, by which it is bound or pursuant to which the Company or any Subsidiary is or was an obligor or a “Material Contract”):beneficiary:
(i) any contract Any material contracts with respect to tangible property other than Real Property which are included on Schedule 2.17, all Contracts with affiliates (whether or agreement not material) other than employment agreements providing for an annual salary and bonus of less than $100,000 or option agreements, material license agreements, 18 termination agreements, consulting or severance agreements, and agreements relating to indebtedness labor or collective bargaining matters;
(ii) Any Contract for borrowed money, letters of credit, capital lease obligations, obligations secured expenditures or services by a Lien the Company or interest rate any Subsidiary which involves consideration payable by the Company or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) Subsidiary in excess of $500,000250,000 in any fiscal year;
(iii) Any Contract evidencing any indebtedness for borrowed money in excess of $ 250,000 or obligation for the deferred purchase price of assets in excess of $250,000 (excluding normal trade payables) or guaranteeing any indebtedness, except obligation nor liability in excess of $ 250,000;
(iv) Any Contract wherein the Company or any Subsidiary has agreed to a non-competition provision;
(v) Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing of profits;
(vi) Any Contract with any Governmental Entity other than for those issued services in the ordinary course of business;
(iivii) any contract Manufacturers' representative, sales agency, dealer or agreement that constitutes a collective bargaining advertising Contract which is not terminable on notice without cost or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which liability to the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000Subsidiary;
(vviii) Contract for the conversion of any lease obligation, instrument or agreement under which the Company security, into debt or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability equity securities of the Company or any of Subsidiary other than the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreementSecurities, the performance of which will involve payment after Stock or the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Warrant;
(ix) any contract or Settlement agreement that concerns the sale or acquisition of any material portion administrative or judicial proceeding within the past five years other than those the effect of which is reflected in the Company’s businessFinancial Statements;
(x) any allianceAny power of attorney, cooperation, joint venture, shareholders, partnership proxy or similar agreement involving a sharing of profits instrument granted by or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more other than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;business consistent with past practice; and
(xivxi) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or Any other obligation which purports material Contract related to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or any Subsidiary, as currently conducted or any other Contract not in the ordinary course of business of the Company Subsidiaries is consistent with past practice. Accurate, correct and complete copies of each such written Contract and written summaries of each such oral Contract have been delivered by the Company to the Buyer.
(b) Each Contract listed or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports referred to limit the ability of on Schedule 2.21 to which the Company or any of Subsidiary is a party, by which it is bound or pursuant to which the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets Subsidiary is an obligor or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) beneficiary is in full force and effect and enforceable in accordance with its terms and (C) will continue effect, except where the failure to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any will not cause a Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction DocumentsAdverse Effect. The Company and each Subsidiary has complied with all commitments and obligations on its part to be performed or observed under each such Contract, except for such noncompliance which is not reasonably likely, individually or in the Company Subsidiariesaggregate, and to have a Material Adverse Effect. To the Knowledge knowledge of the Company, each of party to each such Contract other than the other parties theretoCompany or any Subsidiary has complied, have performed and is in continuous compliance, with all material respects all material commitments and obligations required on its part to be performed by them or observed thereunder, except for such noncompliance which is not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect. The Company has not received any notice of a default under each Material Contract, any such Contract and to the Knowledge of the Company, no event or condition has occurred that with happened or presently exists which constitutes a default or, after notice or lapse of time or both, would constitute a material breach default under any such Contract, except for such notices and defaults which are not reasonably likely, individually or default or permit terminationin the aggregate (together with the items set forth in Schedule 2.21 annexed hereto), modificationto have a Material Adverse Effect.
(c) Except as set forth on Schedule 2.21, or accelerationno consent of any other party to any of the Contracts is required in connection with the execution, under delivery and performance of this Agreement by the Material ContractsCompany.
Appears in 1 contract
Samples: Securities Purchase Agreement (Danskin Investors LLC)
Contracts. The Company has Previously Disclosed or provided (by hard copya) Except as set forth in SCHEDULE 2.12(A) hereto, electronic data room or otherwise) to the Investor or its representatives true, correct and complete copies of each as of the following to which date hereof, the Company or any Company Subsidiary Corporation is not a party (each, a “Material Contract”):to any written or oral:
(i) any contract or agreement relating to indebtedness for borrowed moneypension, letters of creditprofit sharing, capital lease obligationsstock option, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining employee stock purchase or other arrangement plan providing for deferred or other compensation to employees or any other employee benefit plan (other than as set forth in SCHEDULE 2.18 hereto), or any Contract with any labor union;
(ii) Contract relating to loans to officers, directors, or Affiliates;
(iii) Contract relating to the borrowing of money or the mortgaging, pledging or otherwise placing a Lien on any contract or agreement that is a “material contract” within asset of the meaning of Item 601(b)(10) of Regulation S-KCorporation;
(iv) Guarantee of any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000obligation;
(v) any lease or agreement Contract under which the Company Corporation has advanced or loaned any of Person amounts in the Company Subsidiaries aggregate exceeding $10,000;
(vi) Contract pursuant to which the Corporation is lessor of, of or permits any Person third party to hold or operateoperate any property, any property real or personal, owned or controlled by the Company or any Corporation which involves annual compensation in excess of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person$25,000;
(vii) any settlement, conciliation Contract or similar agreement, group of related Contracts with the same party or group of affiliated parties the performance of which will involve payment after the Closing Date of involves annual consideration in excess of $500,00025,000;
(viii) assignment, license, indemnification or Contract with respect to any contract or agreement that relates to Intellectual Property Rights intangible property (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000including, without limitation, any Proprietary Rights);
(ix) any contract warranty Contract with respect to its services rendered or agreement that concerns the sale its products sold or acquisition of any material portion of the Company’s businessleased;
(x) Contract under which it has granted any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating Person any registration rights (including piggyback rights) with respect to the Company or any Company Subsidiarysecurities;
(xi) Contract or non-competition provision in any contract Contract prohibiting it from freely engaging in any business or agreement involving competing anywhere in the world;
(xii) Contract for the purchase, acquisition or supply of inventory and other property and assets, whether for resale or otherwise in excess of $25,000;
(xiii) Contracts with independent agents, brokers, dealers or distributors which provide for annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice25,000;
(xiixiv) any material hedgeemployment, collarconsulting, optionsales, forward purchasingcommissions, swap, derivative advertising or similar agreement, understanding or undertakingmarketing Contracts which provide for annual payments in excess of $25,000;
(xiiixv) Contracts providing for "take or pay" or similar unconditional purchase or payment obligations; or
(xvi) any contract other Contract which is material to its operations and business prospects or agreement with respect to the employment or service involves a consideration in excess of $25,000 annually, excluding any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, purchase orders in the ordinary course of business;.
(xivb) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have Corporation has performed in all material respects all material obligations required to be performed by them it and is not in default in any respect under each Material Contractor in breach of nor in receipt of any claim of default or breach under any material Contract to which the Corporation is subject (including without limitation all performance bonds, and to the Knowledge of the Company, warranty obligations or otherwise); no event has occurred that which with the passage of time or the giving of notice or lapse of time both would constitute result in a material default, breach or default event of non-compliance under any material Contract to which the Corporation is subject (including without limitation all performance bonds, warranty obligations or permit termination, modification, otherwise); the Corporation does not have any present expectation or acceleration, under intention of not fully performing all such obligations; the Material ContractsCorporation does not have any knowledge of any breach or anticipated breach by the other parties to any material Contract to which it is a party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lets Talk Cellular & Wireless Inc)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) Schedule 2.13(a) lists the following agreements to the Investor or its representatives true, correct and complete copies of each which any of the following to which the Company or any Company Subsidiary Jet Center Entities is a party (each, or provides a cross-reference to another schedule in the Disclosure Schedules where such agreements are listed) (each a “Material Contract”):
(i) any contract or agreement all documents relating to indebtedness for money borrowed moneyor collateral therefor, letters of creditincluding guarantees;
(ii) all collective bargaining, capital lease obligationslabor, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoingemployment, but in any event excluding trade payablesconsulting, securities transactions and brokerage agreements arising in the ordinary course of businesstermination, intercompany indebtedness and immaterial leases for telephonescompensation, copy machinesbonus, facsimile machines profit sharing, severance, stock option, stock purchase, retirement, pension, health, accident, group insurance, liability, death benefit and other office equipmentagreements or plans relating to compensation of or benefits for current or former officers or employees;
(iii) any lease, contract, commitment, or agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which will: (A) extend over a period of more than one year; (B) result in a loss; or (C) involve consideration paid or received in excess of $500,00050,000;
(iv) any contract, except for those issued agreement, or instrument not entered into in the ordinary course of business;
(iiv) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within containing restrictions on the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any operations of the Company Subsidiaries is lessee of, FBO Business to compete in any geographic region or holds or operates, in any property owned by any other Person with annual rent payments in excess line of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiariesbusiness;
(vi) any contract or agreement limiting, in any material respect, the ability lease of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Personreal property and all personal property leases;
(vii) any settlement, conciliation agreement concerning a partnership or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000joint venture;
(viii) any contract or agreement that relates to Intellectual Property Rights between the Seller (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries Jet Center Entities) and any of their respective Affiliates; an “Affiliate” of any Person means any other thanPerson directly or indirectly through one or more intermediary persons, Controlling, Controlled by or under common Control (as defined below) with such Person and shall include in each case all of such Persons’ officers, directors, agents, employees, and subsidiaries; “Control” with respect to non-executive employees any Person, means the power to direct the management and consultantspolicies of such Person, in the ordinary course of business;
(xiv) any contract directly or agreement containing any (x) non-competition indirectly, by or exclusive dealing obligations through stock ownership, agency or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in whichotherwise, or the localities pursuant to or in whichconnection with an agreement, all arrangement or any portion of the business of the Company understanding (written or the Company Subsidiaries is oral) with one or can be conductedmore other Persons by or through stock ownership, agency or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or businessotherwise; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force terms “Controlling” and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor “Controlled” have meanings correlative to the Knowledge of the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration, under the Material Contracts.foregoing;
Appears in 1 contract
Samples: Purchase Agreement (Macquarie Infrastructure CO LLC)
Contracts. The Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwisea) to the Investor or its representatives trueSchedule 2.21 sets forth an accurate, correct and complete copies of each list of the following contracts, agreements, arrangements or instruments (the "Contracts") in effect at any time from January 1, 1996 through the date hereof, to which the Company or any Company Subsidiary is or was a party (eachparty, by which it is bound or pursuant to which the Company or any Subsidiary is or was an obligor or a “Material Contract”):beneficiary:
(i) any contract Any material contracts with respect to tangible property other than Real Property which are included on Schedule 2.17, all Contracts with affiliates (whether or agreement not material) other than employment agreements providing for an annual salary and bonus of less than $100,000 or option agreements, material license agreements, termination agreements, consulting or severance agreements, and agreements relating to indebtedness labor or collective bargaining matters;
(ii) Any Contract for borrowed money, letters of credit, capital lease obligations, obligations secured expenditures or services by a Lien the Company or interest rate any Subsidiary which involves consideration payable by the Company or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) Subsidiary in excess of $500,000250,000 in any fiscal year;
(iii) Any Contract evidencing any indebtedness for borrowed money in excess of $ 250,000 or obligation for the deferred purchase price of assets in excess of $250,000 (excluding normal trade payables) or guaranteeing any indebtedness, except obligation nor liability in excess of $ 250,000;
(iv) Any Contract wherein the Company or any Subsidiary has agreed to a non-competition provision;
(v) Any joint venture, partnership, cooperative arrangement or any other Contract involving a sharing of profits;
(vi) Any Contract with any Governmental Entity other than for those issued services in the ordinary course of business;
(iivii) any contract Manufacturers' representative, sales agency, dealer or agreement that constitutes a collective bargaining advertising Contract which is not terminable on notice without cost or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which liability to the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000Subsidiary;
(vviii) Contract for the conversion of any lease obligation, instrument or agreement under which the Company security, into debt or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability equity securities of the Company or any of Subsidiary other than the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreementSecurities, the performance of which will involve payment after Stock or the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000)Warrant;
(ix) any contract or Settlement agreement that concerns the sale or acquisition of any material portion administrative or judicial proceeding within the past five years other than those the effect of which is reflected in the Company’s businessFinancial Statements;
(x) any allianceAny power of attorney, cooperation, joint venture, shareholders, partnership proxy or similar agreement involving a sharing of profits instrument granted by or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more other than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;business consistent with past practice; and
(xivxi) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or Any other obligation which purports material Contract related to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or any Subsidiary, as currently conducted or any other Contract not in the ordinary course of business of the Company Subsidiaries is consistent with past practice. Accurate, correct and complete copies of each such written Contract and written summaries of each such oral Contract have been delivered by the Company to the Buyer.
(b) Each Contract listed or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports referred to limit the ability of on Schedule 2.21 to which the Company or any of Subsidiary is a party, by which it is bound or pursuant to which the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets Subsidiary is an obligor or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) beneficiary is in full force and effect and enforceable in accordance with its terms and (C) will continue effect, except where the failure to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor to the Knowledge of the Company, any other party thereto is in material violation or default under any will not cause a Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction DocumentsAdverse Effect. The Company and each Subsidiary has complied with all commitments and obligations on its part to be performed or observed under each such Contract, except for such noncompliance which is not reasonably likely, individually or in the Company Subsidiariesaggregate, and to have a Material Adverse Effect. To the Knowledge knowledge of the Company, each of party to each such Contract other than the other parties theretoCompany or any Subsidiary has complied, have performed and is in continuous compliance, with all material respects all material commitments and obligations required on its part to be performed by them or observed thereunder, except for such noncompliance which is not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect. The Company has not received any notice of a default under each Material Contract, any such Contract and to the Knowledge of the Company, no event or condition has occurred that with happened or presently exists which constitutes a default or, after notice or lapse of time or both, would constitute a material breach default under any such Contract, except for such notices and defaults which are not reasonably likely, individually or default or permit terminationin the aggregate (together with the items set forth in Schedule 2.21 annexed hereto), modificationto have a Material Adverse Effect.
(c) Except as set forth on Schedule 2.21, or accelerationno consent of any other party to any of the Contracts is required in connection with the execution, under delivery and performance of this Agreement by the Material ContractsCompany.
Appears in 1 contract
Contracts. The (a) Section 3.17 of the Company has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) to the Investor or its representatives true, correct Disclosure Schedule contains a true and complete copies list of each all of the following to which Contracts (excluding insurance and reinsurance policies and Contracts, other than the Company Binder of Reinsurance between ACIC and Xxxxxxx Global International Insurance Company, Ltd. (as amended and restated), issued or any Company Subsidiary is a party (each, a “Material Contract”):
(i) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured entered into by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising insurance company Subsidiaries of the Company in the ordinary course of business consistent with past practice) to which any of the Company or its Subsidiaries is a party or by or to which any of them or their assets or Properties are or may be bound or subject, which are currently in force and effect, as each such Contract may have been amended, modified or supplemented:
(i) other than with respect to Peninsula, all agency, brokerage, reinsurance intermediary or other similar insurance sales or marketing Contracts which accounted for $250,000 or more of the aggregate gross written premiums of the insurance company Subsidiaries of the Company for the year ended December 31, 1998;
(ii) all Material underwriting management, third party administration, managing general agency, profit-sharing or similar Contracts (pursuant to which any underwriting, claims settlement or distribution authority is delegated) in effect with respect to premiums written or business conducted following January 1, 1998;
(iii) Material partnership or joint venture Contracts of which the Company has Knowledge;
(iv) Contracts containing any covenant or provision limiting the freedom or ability of Peninsula to engage in any line of business, intercompany engage in business in any geographical area or compete with any other Person;
(v) Contracts relating to the borrowing of money, or the direct or indirect guaranty of any obligation for, or Contract to service the repayment of, borrowed money or any other Liability in respect of indebtedness and immaterial leases for telephonesborrowed money of any other Person, copy machinesincluding, facsimile machines and without limitation, any Contract relating to any obligation to keep-well, make-whole or maintain working capital or earnings or perform similar requirements;
(vi) all lease, sublease, rental or other office equipment) Contracts under which any of the Company or its Subsidiaries is a lessor or lessee of any real Property providing for annual rental payments in excess of $500,000250,000;
(vii) lease, except sublease, rental, licensing, use or similar Contracts with respect to personal Property used by any of the Company or its Subsidiaries in the conduct of its business, operations or affairs and providing for those issued annual rental or use payments in excess of $250,000;
(viii) Contracts for the purchase, acquisition, sale or disposition of any assets or Properties outside the ordinary course of business or for the grant to any Person (including the Company or its Subsidiaries) of any option or preferential rights to purchase any assets or Properties;
(ix) Contracts relating to the future disposition or acquisition of any investment or any interest in any Person, and all Contracts for the purchase of any security outside the ordinary course of business;
(iix) Contracts relating to licenses of trademarks, trade names, service marks or other similar Property rights;
(xi) employment and other Contracts with any contract officer, director, employee, consultant, agent or agreement that constitutes a other representative providing for compensation or other payments of $250,000 or more per annum (the name, position or capacity and rate of compensation of each such Person and the expiration date of each such Contract being accurately set forth in Section 3.17 of the Company Disclosure Schedule);
(xii) collective bargaining or agreements and any other arrangement Contracts with any labor unionunion or association representing any employee;
(iiixiii) Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any contract of the Sellers or agreement that is a “material contract” within their other Affiliates, or any of the meaning officers or directors of Item 601(b)(10) any of Regulation S-Kthe Sellers or such other Affiliates, on the other hand ("Affiliate Agreements");
(ivxiv) any lease or agreement Contracts under which the Company or any of the Company its Subsidiaries is lessee ofagrees to indemnify any Person, which indemnities remain in force or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000effect;
(vxv) any lease or agreement under which the Company or any powers of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled attorney granted by the Company or any of the Company Subsidiariesits Subsidiaries to any Person which are in force or effect;
(vixvi) Contracts pursuant to which there is either a current or future obligation or right of any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company its Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual make payments in excess of $500,000 that cannot 250,000 in any twelve-month period (other than Contracts relating to investments of such Persons in the ordinary course of business); or
(xvii) any other Contracts which are Material and involve payments or amounts totaling at least $1,000,000.
(b) The Company has heretofore delivered or made available to the Purchaser true and complete copies of all of the written Contracts required to be cancelled by set forth in Section 3.17 of the Company Disclosure Schedule or a in any other Section of the Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedgeDisclosure Schedule. Each such Contract is valid and binding in accordance with its terms, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants and is in full force and effect. None of the Company or any of the Company its Subsidiaries other than, is in default in any Material respect with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company SubsidiariesContract, nor to the Knowledge of the Company, does any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred condition exist that with notice or lapse of time or both would constitute such a material breach Material default thereunder. To the Company's Knowledge, no other party to any such Contract is in default in any Material respect with respect to any such Contract. No such Contract contains any provision providing that any such other party thereto may terminate or default cancel the same by reason of the transactions contemplated by this Agreement or permit terminationany other provision which would be altered or otherwise become applicable by reason of such transactions, modification, and no party has given notice of termination or acceleration, under cancellation of any such Contract or that it intends to terminate or cancel any such Contract as a result of the Material Contractstransactions contemplated hereby.
Appears in 1 contract
Samples: Stock Purchase Agreement (White Mountains Insurance Group Inc)
Contracts. The Company (a) Part 2.14 of the Disclosure Letter contains a complete and accurate list, and Seller has Previously Disclosed or provided (by hard copy, electronic data room or otherwise) delivered to the Investor or its representatives true, correct Buyer true and complete copies of each of the following to which the Company or any Company Subsidiary is a party (eachcopies, a “Material Contract”):of:
(i) any contract each Applicable Contract that involves performance of services or agreement relating delivery of goods or materials to indebtedness for borrowed money, letters the Company or Okeechobee Egg of credit, capital lease obligations, obligations secured by a Lien an amount or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) value in excess of $500,000, except for those issued in the ordinary course of business10,000;
(ii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any contract or agreement that constitutes a collective bargaining leasehold or other arrangement interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with any labor unionterms of less than one year);
(iii) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any contract or agreement that is a “material contract” within of the meaning of Item 601(b)(10) of Regulation S-KIntellectual Property Assets;
(iv) any lease each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or agreement under which liabilities by the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by Okeechobee Egg with any other Person with annual rent payments in excess of $500,000Person;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, each Applicable Contract containing covenants that in any material respect, way purport to restrict the ability business activity of the Company or any Affiliate of the Company Subsidiaries or limit the freedom of the Company or any Affiliate of the Company to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, compete with any Person;
(vi) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration each Applicable Contract for capital expenditures in excess of $500,000;25,000; and
(viii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company. Part 2.14(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including but not limited to, the name, date and parties to the Contracts.
(b) Except as set forth in Part 2.14(b) of the Disclosure Letter, other than any contract being assigned to the Company by Seller immediately prior to the date of this Agreement, Seller (and no Related Person of Seller) does not have any rights under, and Seller does not have any obligation or agreement liability under, any Contract that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliancebusiness of, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other thanassets owned or used by, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner Okeechobee Egg.
(c) Except as set forth in which, or the localities in which, all or any portion Part 2.14(c) of the business Disclosure Letter, each Contract identified or required to be identified in Part 2.14(a) of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and general principles of equity (Cregardless of whether considered in a proceeding in equity or at law).
(d) will continue to be legal, valid, binding, enforceable, and Except as set forth in full force and effect in all material respects following the consummation Part 2.14(d) of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company Subsidiaries, nor Disclosure Letter:
(i) to the Knowledge of Seller, the Company, any other party thereto is in material violation or default under any Material Contract. No benefits under any Material Contract will be increased, Shareholders and no vesting of any benefits under any Material Contract will be accelerated, by the occurrence of any of the transactions contemplated by the Transaction Documents, nor will the value of any of the benefits under any Material Contract be calculated on the basis of any of the transactions contemplated by the Transaction Documents. The Company and the Company Subsidiaries, and to the Knowledge of the Company, each of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material Contract, and to the Knowledge of the Company, no event has occurred or circumstance exists that (with or without notice or lapse of time would constitute time) may contravene, conflict with, or result in a material violation or material breach of, or give the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(ii) to the Knowledge of Seller, the Shareholders and the Company, neither Seller nor the Company has given to or received from any other Person, at any time since November 30, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential material violation or material breach of, or default or permit terminationunder, modificationany Applicable Contract.
(e) Except as set forth in Part 2.14(e) of the Disclosure Letter, there are no renegotiations of, attempts to renegotiate, or accelerationoutstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, under design, marketing, production or provision of products or services by the Material ContractsCompany have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Samples: Membership Interests Purchase Agreement (Cal Maine Foods Inc)
Contracts. The Company (a) Set forth in Section 3.13(a) of the Disclosure Schedule is a true, complete and correct list of all written or oral contracts, agreements, understandings, guarantees, leases and commitments (each a “Contract”) to which the Seller is a party or to which the Purchased Assets or the Business is subject or bound and which fall within any of the following categories:
(i) joint venture, partnership and similar Contracts;
(ii) Contracts containing covenants purporting to limit the freedom of the Seller or its Affiliates (or their respective employees, producers or agents) to compete in any line of business in any geographic area or to solicit or hire any individual or group of individuals or to solicit or engage in any business transaction whatsoever with any Persons or groups of Persons, or containing any other similar restrictions;
(iii) Contracts which after the Closing Date, if assigned to Buyer, could have the effect of limiting the freedom of any member of the NFP Group (or their respective employees, producers or agents) to compete in any line of business in any geographic area or to solicit or hire any individual or group of individuals or to solicit or engage in any business transaction whatsoever with any Persons or groups of Persons, or containing any other similar restrictions, other than the foregoing that would be exclusively for the benefit of the Buyer;
(iv) Contracts pursuant to which the Seller has Previously Disclosed agreed to (A) acquire or provided sell any material assets, or (B) acquire, whether by hard copymerger, electronic data room consolidation, exchange, stock purchase, asset purchase or otherwise, any business of any other Person or any material portion thereof;
(v) Contracts, indentures, mortgages, promissory notes, loan agreements or guarantees of amounts in excess of $25,000, letters of credit or other Contracts, or commitments for the borrowing or the lending of amounts in excess of $25,000 or providing for the creation of any charge, security interest, or Encumbrance upon any of the assets of the Seller or the Business, including the Purchased Assets;
(vi) Contracts relating to equipment or property leases, intellectual property license agreements and/or all other contracts or agreements relating to intellectual property;
(vii) Contracts with or for the benefit of any Affiliate of the Seller (any such Contract, an “Affiliate Agreement”);
(viii) Contracts with a Carrier or other insurance or financial service companies not containing terms generally customary in the industry and/or not entered into in the ordinary course of business of the Seller or the Business consistent with past practice;
(ix) Contracts with Governmental Authorities;
(x) Contracts with “wholesalers”, “solicitors” or referral sources of insurance and financial services;
(xi) Contracts containing provisions purporting to offer or agree to limit any pricing, fee or compensation terms with any client, carrier, broker, customer, employee, producer or agent of the Seller or its Affiliates, or following the Closing, Buyer or its Affiliates, or to perform under any existing Contract containing such terms, or containing any other similar restrictions (including any “most favored nations” provisions);
(xii) any secrecy or confidentiality agreement (other than standard confidentiality agreements in computer software license agreements or agreements with clients, vendors, employees or independent contractors entered into in the ordinary course of business); and
(xiii) all other Contracts that could be material to the Investor Seller or its representatives the Business and are not otherwise listed on Section 3.13(a) of the Disclosure Schedule pursuant to the preceding clauses (i)-(xi). The Seller has provided the Buyer with true, correct and complete copies of each all Contracts required to be set forth in Section 3.13(a) of the following Disclosure Schedule, including all amendments, supplements and modifications thereto. All such Contracts set forth, or required to which the Company or any Company Subsidiary is a party (eachbe set forth, a “Material Contract”):
(ion Section 3.13(a) any contract or agreement relating to indebtedness for borrowed money, letters of credit, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging agreements (including guarantees in respect of any of the foregoing, but in any event excluding trade payables, securities transactions and brokerage agreements arising in Disclosure Schedule are the ordinary course of business, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment) in excess of $500,000, except for those issued in the ordinary course of business;
(ii) any contract or agreement that constitutes a collective bargaining or other arrangement with any labor union;
(iii) any contract or agreement that is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K;
(iv) any lease or agreement under which the Company or any of the Company Subsidiaries is lessee of, or holds or operates, any property owned by any other Person with annual rent payments in excess of $500,000;
(v) any lease or agreement under which the Company or any of the Company Subsidiaries is lessor of, or permits any Person to hold or operate, any property owned or controlled by the Company or any of the Company Subsidiaries;
(vi) any contract or agreement limiting, in any material respect, the ability of the Company or any of the Company Subsidiaries to engage in any line of business or to compete, whether by restricting territories, customers or otherwise, or in any other material respect, with any Person;
(vii) any settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $500,000;
(viii) any contract or agreement that relates to Intellectual Property Rights (other than a license granted to the Company for commercially available software licensed on standard terms with a total replacement cost of less than $500,000);
(ix) any contract or agreement that concerns the sale or acquisition of any material portion of the Company’s business;
(x) any alliance, cooperation, joint venture, shareholders, partnership or similar agreement involving a sharing of profits or losses relating to the Company or any Company Subsidiary;
(xi) any contract or agreement involving annual payments in excess of $500,000 that cannot be cancelled by the Company or a Company Subsidiary without penalty on not more than 90 days’ notice;
(xii) any material hedge, collar, option, forward purchasing, swap, derivative or similar agreement, understanding or undertaking;
(xiii) any contract or agreement with respect to the employment or service of any current or former directors, officers, employees or consultants of the Company or any of the Company Subsidiaries other than, with respect to non-executive employees and consultants, in the ordinary course of business;
(xiv) any contract or agreement containing any (x) non-competition or exclusive dealing obligations or other obligation which purports to limit or restrict in any respect the ability of the Company or any Company Subsidiary to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or the Company Subsidiaries is or can be conducted, or (y) right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of the Company Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; and
(xv) any material contract or agreement that would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement. Each Material Contract (A) is legal, valid and binding on the Company and the Company Subsidiaries which are a party to such contract, (B) is in full force and effect and enforceable in accordance with its terms and (C) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects following the consummation obligations of the transactions contemplated by the Transaction Documents. Neither the Company nor any of the Company SubsidiariesSeller and, nor to the Knowledge of the CompanySeller Parties, the legal, valid and binding obligation of each other party thereto. None of the Seller, or, to the Knowledge of the Seller Parties, any other party thereto is in material violation of or in default in respect of, nor has there occurred an event or condition which with or without the passage of time or giving of notice (or both) would constitute a violation or default under under, any Material such Contract.
(b) Attached to Section 3.13(b) of the Disclosure Schedule is a true and complete list of all the standard forms of agreements and other documentation used in the Business with customers or clients (the “Customer Contracts”), true, correct and complete copies of which have previously been furnished to the Buyer. No benefits under There are no contracts, agreements or other commitments, whether oral or written, between the Seller and any Material customers or clients, other than those in the forms of the Customer Contracts, except as otherwise set forth in Section 3.13(b) of the Disclosure Schedule. The Seller is not a party to any Customer Contract will be increased, and no vesting that grants the Seller “discretionary” authority to withdraw assets from a customer account or otherwise have custody of any benefits under any Material Contract will be accelerated, by the occurrence of any client assets.
(c) Set forth in Section 3.13(c) of the transactions contemplated by the Transaction Documents, nor will the value Disclosure Schedule is a true and complete list of any all Contracts of the benefits under any Material Contract be calculated on the basis of any Seller with an insurance carrier, broker or agency (each such Contract, an “Insurance Carrier Contract” and each such insurance carrier, broker or agency, a “Carrier”). None of the transactions contemplated by Insurance Carrier Contracts contain terms or conditions that differ in any material respect from the Transaction Documentsindustry standard. The Company All Insurance Carrier Contracts are the legal, valid and binding obligations of the Company SubsidiariesSeller and, and to the Knowledge of the CompanySeller Parties, the legal, valid and binding obligation of each other party thereto. None of the other parties thereto, have performed in all material respects all material obligations required to be performed by them under each Material ContractInsurance Carrier Contracts has been terminated or cancelled, and no party to any such Insurance Carrier Contract has notified any Seller Party in writing of any default under such Insurance Carrier Contract. The Seller has an appointment to act as an agent or broker for each Carrier from which they need such an appointment to conduct the Knowledge Business and, except as set forth in Section 3.13(c) of the CompanyDisclosure Schedule, the Seller’s relationships with such Carriers are good commercial working relationships. Since January 1, 2021, there has been no adverse change in any material respect in any of the Seller’s relationships with the Carriers. Since January 1, 2021, no event Carrier has occurred that with notice changed, modified or lapse altered the commission structure or other form of time would constitute a material breach or default or permit termination, modification, or acceleration, compensation arrangement under the Material ContractsInsurance Carrier Contract applicable to any such Carrier, and no party to any such Insurance Carrier Contract has notified any Seller Party of any present or impending change, modification or alteration to such commission structure or compensation arrangement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Financial Institutions Inc)
